Amicus Curiae Brief — United States v. Nobles

IN THE SUPREME COURT OF THE UNITED STATES

October Term 1974

UNITED STATES OF AMERICA, PETITIONER

Vv.

ROBERT LEE NOBLES, RESPONDENT

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

BRIEF OF THE CALIFORNIA PUBLIC DEFENDERS

ASSOCIATION, THE NATIONAL LEGAL AID AND

DEFENDERS ASSOCIATION, AND THE AMERICAN

CIVIL LIBERTIES UNION FOR SOUTHERN

CALIFORNIA AS AMICI CURIAE IN SUPPORT OF

THE RESPONDENT

LAO TESLON

INDEX

Statement of Interest of Amici Curiae.... 1

Summary of Argument....... naneae or ae

Argument:

I. The report of the defense

investigator was protected from

disclosure to the government by

the Fifth Amendment privilege

against self-incrimination..... 4

A. The privilege against

compulsory self-incrimina-

tion extends to the report

of the defense investigator

such that the respondent

properly invoked its

protection to prevent dis-

closure of that report..... 4

II. The trial court's order

deprived respondent of his

right to the effective assistance

of counsel and his right to

present witnesses under the

Sixth Amendment..........+-- 17

III. The order of the court in this

case violated the principle of

reciprocity outlined in Wardius

V. Oregon..... sso ewes coun Ce

Conclusion. .....cc.cccecscceccececeeses Ob

PER LINE LLETOHO PEO E LONIES IES SLO AES VBL

CITATIONS

Cases: : Page

Black v. United States, 385 U.S.

26 errr TT Te ee Tey eee ee eT ee 21 7

Boyd v. United States, 116 U.S.

ee Hh idé kaa s bee ean cde seenebee eee 9, ll

Branzburg v. Hayes, 408 U.S. 665 ~

fb) ga | Seen eeoeeeeeees . e« @@°e 5

Brown v. United States, 356 U. ‘s.

PP Re yg re ee a a eee 14

Coplon v. United States, 191 F.2d

S60 0). 5. Gas SOG 605 KeOVS sda ve ccses 17

Couch v. United States, 409 Uz Ss.

po Bey pt BRAN yea Per a ee ere 5, 6, 16

Counselman v. Hitchcock, 142 U.S.

G47 (IBGE) occwiccsioresspssoressoscocee§ 9, i

' Entick v. Carrington, 19 How. St. .

: TP. pg a} Tr ee ee a 7

Gilday v. Commonwealth, 274 N.E.

2d 589 (Mass. Sup. Jud. Ct. 1971)....... 22

Goldstein v. Great Atlantic and

Pacific Tea Co., Fla., 118 So. 253

(1960). wc cscjocccesccccersececes eeesee 10

Griffin v. California, 380 U.S. 609

Ca cs ccs a bee re ei peeves 12°

Harris v. New York, 401 U.S. 222

foo) er SCtiee + LbaeES ae erne oe 8, 14

Henfield v. United States, 118 F.2d :

es Bi Re Se: ee ee fcaeee 17

Hoffa v. United States, 385 U.S. 293

SR 666k 2 ects ioe eeeneenee eeeseoee 21

In re Oliver, 333 U.S. 257 (1948) ....... 13

Jencks v. United States, 353 U.S.

ee NE ok ok es ios heer’ m 23

McGautha v. California, 402 U.S. 183

(ROTG? cccce eeereseereeeeeeveseee ee ees oe 9, 18

McMann v. Richardson, 397 U.S. 759

8 ge) Eee eee eee Gc aes 12

Malloy v. Hogan, "378 U. 8. 10964). eens 12

fi.

P

Cases - Continued | Page

Menendez v. United States, 393 F.2d

312 (Sth Cir. 1966) cocccvedoccccsceccess BS

Miranda v. Arizona, 384 U.S. 436

(1066) vcccvccovens svpesscsevccescesces 9,9

Murphy v. Waterfront Commission, ,

878 U.S. 52 (1964) .ccccccdiccccvcvsccsece 1.

Nardone v. United States, 308 U.S.

S00 TANG Fh dk cratecetscsceseweccssccs §

O'Brien v. United States, 386 U.S.

DAD CIs 0:0 aa 6 b6 O26 O Os Oe nde 6 04ces 21

‘Palermo v. United States, 360 U.S.

SAS (IBGE). wcccoccccvecescccesevescecse § 20

People v. Bennett, 29 N. Y. 2d 462

OTA) o owes caovcceevebesovecseccosccosce MG

Powell v. Alabama, 287 U.S. 45

Ci Hbad oe SW ak oe eae Oh ee ee Oe 17

Prudhomme v. Superior Court, 2 Cal.

3d 1320, 85 Cal. Rptr. 129, 466 Pp. 2d

ES TI ood. oc ao ks wk a ka ce oie ure 8

Raffle v. United States, 271 U.S.

, BOA COZS) ccc dvcvqrccnveccvcccccssccccce: UM

Reilly v. Berry, 250 N.Y. 456

Sib dO esa a eaves ee bee seen ds See eee 18

Rodriguez v. Superior Court, 9 Cal.

App. 3d 493, 88 Cal. Rptr. 154 (1970)..... 22

Roe dem. Haldane v. Harvey, 4 Burr.

2489, 38 Eng. Rep. 302 (1769)........... 7

Schmerber v. California, 384 U.S.

ij g’. | Sarre err e*eeeeeeee 9, ll

Shephard v. Hunter, 163 F.2d 872

CE os BPO he sctsscdsssscecesscias 18

Sherbert v. Verner, 374 U.S. 398

‘ EE $48 eb wwew ee wie wdr Ss oewene eeseee 12

Simmons v. United States, 290 U.S. |

ie | A ee ee eae 14

Specht v. Patterson, 386 U.S. 605

SET) Vise beeel enka o bk te eunweeeenceare 13, 17

area Vv. eens 385 U.S. 511

(1967) . Tere rere rr ere ‘iseseeeaeee Im

Cases - Continued Page

State v. Benner, 284 A.2d 91

(Maine Sup. Jud. Ct. 1971) ............ » , 22

United States v. Augenblick, 393 U. Ss.

BEE (10GG) 2. ccccccsccccccccccccccsecs 23

United States v. Cohen, 388 F.2d

We Fe rie UOT ccccccccccccccececces 5, ll, 17

United States v. Fratello, 44 F.R.D.

ee EE Bobbi Wai debe b es 6% 00 0 c0ees cee ll, 12

United States v. Hoffa, 349 F.2d 20

(6th Cir. le ec ebe ce 24

United States v. Kovel, 296 F.2d 918

(2d Cir. 1971) eevee eee ees 7 oe eeeevede 10, 20

United States v. Missler, 414. F. 2d

Es a bob onecn ed cece cecce 23

United States v. Nixon, 418 U.S. 683

Ne ee 5

United States v. Nobles, 501 F.2d 146

(9th Cir. MOTD) ces e@eeeeeveev eee eee eeese 1, 6, 16

United States v. Smaldoné, 484 F.2d 311

SI SUS? Gb sve ca ccccccccscccer 23

United States v. White, 322 U. Ss.

ep ncwocevés 6

United States v. Wright, 489 F.2d

po a | 5, 6, 15

Warden v. Hayden, 387 U.S. 294 (1967). ll

Wardius v. Oregon, 412 U.S.

470 (1973) «1+. +--eeereeees (era eheres 3, 5, 18

Washington v. Texas, 388 U.S. 14

(1967) SER PS REET pao Oe ORES AE ee a LO 13, 17

Williams v. Florida, 399 U.S.

DEE hb 6 bbb 06 enk bade bbebeedtewor 5, 6, 15

f

iv.

nomen tees —

aaa

Constitution, Statutes and rules: Oe Page

United States Constitution:

Fifth Amendment........ 2,4, 5,6,

7,8

Sixth Amendment........ y ie ey P

18 U.S.C. 3500 (The Jencks Act). 3,16, 20,

18 U.S.C. 3500 (e) ...-seeeeeees 23

18 U.S.C. 3500 (e)(1) ....-+--eee 24

Federal Rules of Criminal Procedure:

Rule 16 .cccccccccccccece 20

Bude BO cccccecsccceseces j

Federal Rules of Evidence:

Rule 501 ...c.eeeeeeeees 10

Rule 612 ....--eeeeeeees 26, 27,28

Rule GIS .ccececsecseccos 26

Rule 613(A) ....--e++-+% 26

Miscellaneous:

A.B,A. Project on Standards for

Criminal Justice, Standards

Relating to the Defense Function,

§4.1 (Approved Draft 1971)...... 18

A.B.A. Standards of Discovery

and Procedure Before Trial

Supplement, 5-6 (Approved Draft,

October 1970) .....-ee-eeererees 22

Vv.

bie is - te = i or fo i”, — , *

re OGY AD my EO, OTN Ree ALAA MGT he poet OA

Miscellaneous - Continued

Brennan, The Criminal

Prosecution: Sporting Event

or Quest for Truth? 1963

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

Freeman, The Public Defender

System, J. Amer. Jud. Soc.

74 (1948) .. .cccccvccccccerecccce

Goldstein, The State and the

Accused: Balance of Advantage

in Criminal Procedure, 69 Yale —

L.J. 1149 (1960) eevee eveveve0e eee

Louisell, Criminal Discovery and

Self-Incrimination: Roger

Traynor Confronts the Dilemma,

53 Calif. L. Rev. 89 (1965) .....

Moore, Criminal Discovery, 19

Hastings L.J. 865 (1968) .......

Note, Agents Reports and the

Attorney-Client Privilege, 21

U. Chi. L. Rev. 752 (1954) ....

Note, Frosecutorial Discovery

Under Proposed Rule 16, 85

Harv. L. Rev. 994 (1972) .....

Note, Right to Aid in Addition to

Counsel for Indigent Defendants,

47 Minn, L. Rev. 1054 (1963)...

Note, The Indigent's Right to

Adequate Defense: Expert and

Investigatorial Resources in

Criminal Proceedings, 55 Corn.

L. Rev. 632 (1970) .......eeees

vi.

>

Page

19

12, 13.

10

13, 19

18

18

—

Miscellaneous - Continued Page

Sevilla, The Exclusionary

Rule and Police Perjury,

ll 4 D. L. Rev. 839 (1974) eeeeneeee 20

The Preclusion Sanction

- A Violation of the

Constitutional Right to

Present a Defense, 81

Yale L.J. 1342 (1972) .......- —s 13

Wilkerson, Public Defenders

As Their Clients See Them,

1Am. J. of Crim. L. l4l

(April 1972) 2... eee s ee ceeeeres ra

1974 U.S. Code Cong. and

Ad. News, Vol. 12A (15

January 1975) ........- ‘ceaeus ll

vii.

a

_—

STATEMENT OF INTEREST OF AMICI CURIAE

The California Public Defenders Association

is a non-profit corporation incorporated under the

laws of the State of California in 1969. The purpose

of the association is to assist public defender offices

in California, whether state or federal, in their

ongoing efforts to provide effective representation

for indigent. criminal defendants. In this regard,

the association is vitally concerned with any action

which might have a substantial impact upon the rights

of their clients and upon their ability as defense

attorneys to protect these rights.

The American Civil Liberties Union of

Southern California is a non-profit organization

dedicated to the preservation of the personal

guarantees of the Bill of Rights of the United States

Constitution. The ACLU is, therefore, concerned

with any decision of this Court which may effect the

constitutional rights of any citizen or group of

citizens.

The National Legal Aid and Defenders

Association has a nationwide membership including

legal aid and public defender offices as well as

individual attorneys who are concerned with previding

access to effective legal services to the poor.

Because of their focus on the representation of

indigents, and their position as a national

association, NLADA is actively involved in providing

input into action, legislative or judicial, which may

be of consequence to the clients they represent.

Amici are extremely concerned over the out-

come of the case at bar because of their common

desire to see the important constitutional rights

of citizens protected. The organizations involved in

this brief feel that the decision of the United States

Court of Appeals for the Ninth Circuit in United States

v. Nobles, 501 F.2d 146 (9th Cir. 1974) was proper.

Were the order of the trial court upheld, it would

is

have disastrous and destructive impact on the Fifth

and Sixth Amendment rights of the criminally

accused, on the ability of defense attorneys to

effectively represent their interests, and provide

an unfair and unconstitutional advantage to the

prosecution in federal criminal trials.

Amici fully agree with the position of the

respondent that the order of the trial court at issue

here was improper and that the decision of the

Court of Appeals was correct. This brief is

submitted in support of that judgment.

SUMMARY OF ARGUMENT

The order of the trial court which was held

to be reversible error by the Court of Appeals

violated respondent's Fifth Amendment privilege

against self-incrimination. Respondent's privilege,

which extended to the defense investigator because of

his close relationship to respondent's cause,

protected the investigator's notes from disclosure

to the prosecution. Although the notes were not

the words of respondent as such, they were

testimonial in nature, and, therefore, were covered

by the Fifth Amendment. The trial court's order that

the investigator either agree to surrender his notes

(which related to an interview of prosecution witnesses)

or forego the opportunity to testify, forced respondent

to choose between giving up his Fifth Amendment right

not to incriminate himself and his Sixth Amendment

right to present witnesses in his behalf. This. choice

is constitutionally impermissible and amounts to a

form of ''compulsion.'' Because he himself did not

testify, respondent did not waive any objection he

3 might have had to this procedure by calling the

% investigator as a witness.

By precluding the use of the investigator's

§ testimony regarding his interview with the

@ prosecution witnesses, the court violated respondent's

Sixth Amendment right to present witnesses and to

2.

an

challenge the government's case. The inability to

present this evidence also denied respondent his

right to the effective assistance of counsel. If the

trial court's order is permitted to stand, the Court's

decision in that regard could have a detrimental

impact on the ability of attorneys, particularly

appointed counsel, to provide effective representation

for those accused of criminal conduct.

Finally, the order of the trial court

violated the principles outlined in Wardius v.

Oregon, 412 U.S. 470 (1973), because it gave the

prosecution access to discovery from respondent

which respondent had no reciprocal right to demand

from the prosecution. The investigator's report

did not constitute his ''statement'' within the mean-

ing of the Jencks Act, 18 U.S.C. 3500, and therefore

a similar report in the hands of a government

witness would not have been discoverable by

respondent under the provisions of that Act.

I

THE REPORT OF THE DEFENSE INVESTIGATOR

WAS PROTECTED FROM DISCLOSURE TO THE

GOVERNMENT BY THE FIFTH AMENDMENT

PRIVILEGE AGAINST SELF-INCRIMINATION.

A. The Privilege Against Compulsory Self-

Incrimination Extends to the Report of

the Defense Investigator such that the

Respondent Properly Invoked its

Protection to Prevent Disclosure of that

Repo t.

The petitioner argues that the order of the

trial court requiring that, as a condition precedent

to testifying, the defense investigator from the

Federal Public Defender's office agree to surrender

to the prosecution his notes of the interview with the

eyewitness did not violate respondent's Fifth

Amendment right not to incriminate himself. This

contention is based on two premises. First, the

respondent's Fifth Amendment privilege does not

extend to the notes of the investigator, and second

that, even if the notes were covered by the privilege,

respondent was not compelled to disclose them, and

would have waived any objection to their introduction

by putting the investigator on the stand. (Brief for

Petitioner at 44-45, 52-54)

Dealing with these arguments in order, we

confront at the outset what is perhaps the most

significant issue in this case: Can a member of the

defense team as closely allied to the defendant's

cause as the defense investigator be compelled to

disclose evidence which may tend to incriminate the

accused? .

In attempting to answer this question, this

wen

court finds itself again facing the problem of

resolving the conflict between the "search for truth"

in criminal trials and the need to guarantee that a

defendant in a criminal trial not be compelled to

assist the State in proving his guilt. Wardius v.

* Oregon, 412 U.S. 470 (1973); Williams v. Florida,

399 U.S. 78 (1969). Ina recent opinion dealing with

this troubling point, the Court noted:

. "The public. . .has a right to every

man's evidence except for those persons

% protected by a constitutional, common

law, or statutory privilege.''

United States v. Nixon, 418 U.S. 683, 709 (1974)

(citing Branzburg v. Hayes, 408 U.S. 665, 688

(1972)).

In light of this standard, the critical question

ig one of whether the ''constitutional privilege"

afforded respondent by the Fifth Amendment protected

from disclosure to the government the notes of the

investigator, despite their potential relevance in

the search for truth at the trial. There is no question

that the fact that evidence may be relevant is not

alone enough to require disclosure of that evidence

when disclosure would violate an over-riding public

policy to protect an individual's constitutional rights.

Nardone v. United States, 308 U.S. 338, 340 (1939).

ouch v. Unite ates, 409 U.S. 322 (1972);

Miranda v. Arizona, 384 U.S. 436 (1966); United

States v. Wright, 489 F.2d 118 (D.C. Cir. 1973);

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

1967). The principle has been expressed often and in

the context of the issue now before the court, no bette

than this:

"The defendant has a right under the

Fifth Amendment to compel the state

to investigate its own case, find its

own evidence, and prove its own facts.

The defense has no duty to help the

prosecution convict the defendant

» 5.

tess AIT IR TEIN EN NE ERR AE ee FLO PERSE, WOT IAY LOS PRR OE EOE TG Be

XN

We therefore reject any rule which

would require the defense to turn over

to the prosecution prior statements of

defense witnesses which could be used

by the prosecution as evidence against

the accused. '

United States v. Wri a supra at 1195. See Couch

v. United States, 40 (1972); Williams v.

Florida, supra at 112 (Black and Douglas, J.J.,

dissenting); United States v. White, 322 U.S. 694,

698 (1944); United States v. Nobles, 501 F.2d 146,

155 (9th Cir. 1974),

The rationale for this position is a familiar

one and is the same as that which was the basis for

the inclusion of the Fifth aene by the Framers

in the Bill of Rights.

"Historically, the privilege sprang

from an abhorrence of governmental

assault against a single individual

accused of crime and the temptation

on the part of the State to resort to

the expedient of. compelling incrimi-

nating evidence from one's own mouth.

United States v. White, [supra]. The

Court has thought the priv el

necessary to prevent any 'recurrence

of the Inquisition and the Star Chamber,

even if not in their stark brutality. '"

Couch v. United States, supra at 327.

This concept of not forcing from the accused

evidence which may damage his cause is rooted deep

_—

in our common law tradition. 1 Commentators have

expressed real concern that the trend in recent

years of allowing the State greater access to the

defendant's case may lead to the excesses which

the Fifth Amendment was designed to prevent.

Petitioner argues that the respondent was

not being required to "help the prosecution" convict

him because they were not seeking to introduce the

investigator's reports in their case in chief, and

had already met the initial burden of establishing

a prima facie case against respondent sufficient

to meet the challenge of a motion for judgment of

acquittal under Rule 29, Federal Rules of

Criminal Procedure. (Brief for Petitioner at

56-57) The fallacy of this argument lies in its

"[I]n civil causes, the Court will force

parties to produce evidence which may

prove against themselves; or leave the

refusal to do it (after proper notice) as

a strong presumption to the jury ****

But in a criminal or penal cause, the

defendant is never forced to produce any

evidence; though he should hold it in his

hands in court."

Roe dem. Haldane v. Harvey, 4 Burr. 2489, 38

Eng: Rep. 302, 305 (K. B. 1769); cf.. Entick v.

Carrington, 19 How. St. Tr. 1029 (1765).

Louisell, Criminal Discovery and Self-

Incrimination: Roger Traynor Confronts

the Dilemma, 53 Celi. L. Rev. 59 (1965);

Goldstein, The State and the Accused:

Balance of Advantage in Criminal Procedure,

69 Yale L.J. 1149 1560)

apparent assumption that any evidence introduced by

the government following the close of their case in

chief, no matter how incriminating, does not figure

in the mind of the trier of fact when considering

the issue of guilt or innocence. Anyone familiar

with trial practice knows that this is not the case.

See Harris v. New York, 401 U.S. 222 (1971). |

Experienced prosecutors are well aware of the

strategic. impact of a strong rebuttal case as are the

courts. In setting forth a standard for determining

whether an accused's Fifth Amendment rights were

being violated by a discovery order, the California

Supreme Court observed:

"The privilege forbids compelled

disclosures which could serve as 'link

in a chain' of evidence tending to

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

Prudhomme v. Superior Court, 2 Cal. 3d 320, 325,

326, 85 Cal. Rptr. 129, 131, 466 P.2d 673, 677

(1970). _

® The emptiness in the constitutional sense of

any distinction between incriminating evidence that

is introduced against a defendant during the

prosecution's case in chief, and incriminating ‘

evidence used at later stages in the trial is well

recognized:

"The privilege against self-incrimination

protects the individual from being held

to incriminate himself in any manner. . .

[S]tatements merely intended to be

exculpatory by the defendant are often

used to impeach his testimony at trial. . . .

These statements are incriminating in

any meaningful sense of the word. .. ."'

.

Aw o

Miranda v. Arizona, 384 U.S. at 476-477. 3

Petitioner argues that even assuming that

the materials sought from the defense investigator

in this case could have incriminated respondent by

serving as a "link in a chain" of evidence tending to

establish his guilt, that the investigator was not

covered by the privilege. A careful examination of

both the nature of the coverage afforded by the

Fifth Amendment and the relationship between

defense investigator and the defendant's interests

shows that the privilege does extend to prevent |

disclosure such as was ordered by the trial court

here.

On the first point it is ope’ ant to

remember that". . .the protection of the,

privilege 'is as broad as is the mischief against

which it seeks to guard.''' Schmerber v. California,

384 U.S. 757, 764 (1966) (citing Counselman v. ia

Hitchcock, 142 U.S. 547, 562 (1892)).. Mindful of

this fact, and of the "duty: of courts to be watchful

for the constitutional rights of the citizen, and |

against any stealthy encroachments thereon, "'

Boyd v. United States, 116 U.S. 616, 635 (1886), it

has been observed that "'. . .the Fifth Amendment

marks 'a zone of privacy' which the government may

not force a person to surrender.'' Schmerber, supra

at 778 (Douglas, J... dissenting)

_@

On this 5 eee “ has been observed:

an [A] defendant whose motion for

acquittal at the close of the Government's

case is denied must decide whether to stand

on his motion or put on a defense, with a

risk that in so doing he will bolster the

Government case enough for it to —

a verdict of guilty."

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

9.

PONTE, LOLI : ILL LRA SLE OI I Se SEIS AEE ED IY SONA ME REITER ERY BE I te sar

Given the close relationship between the

investigator for the defense and the accused's

interests, it is clear that the reports of the

investigator were within this ''zone of privacy" and

were protected from disclosure by respondent's

privilege against self-incrimination. The proximity

of this relationship is evident by the fact that, in

the opinion of many authorities, investigators are

included within the coverage of the attorney-client

privilege. See e.g., United States v. Kovel, 296

F.2d 918 (2d Cir. 1961); Goldstein v. Great Atlantic

and Pacific Tea Co., os 0. e,

Fla., 118 So. 253 (1960); Not

Agents Reports and the Attorriey-Client Privilege,

0 Chi L. Rev. 752, 753 TO5z) In fact, as

originally proposed by the Senate, the Federal Rules

of Evidence, Rule 503, included within the lawyer -

client privilege anyone'’. . .employed to assist the

lawyer in the rendition of professional legal services. "'

The final version of the Rules, which are now in

effect, does not include the specific privileges. All

that remains is Rule 501 which provides in pertinent

part:

"Except as otherwise required by the

Constitution of the United States or

provided by Act of Congress or in:

. rules’ prescribed by the Supreme Court

pursuant to statutory authority, the ©

privilege of a witness, person, govern-

ment, state or political subdivision thereof

shall be governed by the principles of the

common law as they may be interpreted by

the courts of the United States in the light of

reason and experience. "'

In commenting on Rule 501, and the deletion of the

specific privileges from the final version of the Rules,

the Senate Report noted:

"It should be clearly understood that,

.in approving this general rule as to

privileges, the action of Congress should

10.

not be understood as disapproving any

recognition of a psychiatrist, patient

or husband-wife, or any other of the

enumerated privileges contained in the

Supreme Court rules. Rather, our

actions should be understood as reflect-

ing the view that recognition of a

privilege based on confidential relation-

ship and other privileges should be

determined on a case-by-case basis."

1974 U.S. Code Cong. and Ad. News, Vol. 12A

at 48-49 (15 January 1975).

Petitioner also contends, if somewhat

obliquely, report of the investigator was not

"testimonial" in character and therefore its

disclosure is not protected by the Fifth Amendment.

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

position does not comport with the requirement that

constitutional provisions which protect personal

rights be given a "liberal construction. ' Counselman

v. Hitchcock, supra at 584-585. It also fails to

consider that in the context of the case at bar, the

order of the trial court would have required divulging

the contents of a report which is, in itself, obviously

of a testimonial nature. Boyd v. United States, supra;

United States v. Cohen, SBOE, 2d 462 (Oth Cir. eT

United States v. Fratello, 44 F.R.D.444(1968). Cf.

Warden v. Hayden, 357 U.S. 294 (1967); Schmerber

v. California, supra.

B. The Respondent was Impermissibly .-

Compelled to Surrender the Investigator's

Report by the Trial Court's Order and His

Calling of the Investigator as an Impeaching

Witness Did Not Constitute a Waiver of His

Fifth Amendment Privilege as to the Reports.

ll.

OREO AGIGT IS: SOE, OPO LEM GIUI BN CREE LAG LEO EEAL AAG YD if Bic Tt

Petitioner argues that, even if the defense

investigator's report of his interview with the

eyewitnesses was covered by respondent's Fifth

Amendment privilege, there was no impermissible

compulsion, in the constitutional sense, for

defendant to surrender these reports. Instead,

it is asserted, respondent waived any objection he

might have had by calling the investigator as a wit-

ness. On the first point, the Petitioner claims

that ''the Court's order did not create the kind of

compulsion 'likely to exert such pressure upon an

individual as to disable him from making a full and

rational choice.''' and that therefore the Fifth

Amendment is not implicated. (Brief for Petitioner

at 49-50, citing McMann v. Richardson, 397 U.S.

759, 769 (1970)).

This position ignores reality as well as legal

precedent. First, it has long been held that

requiring a person, particularly a criminal

defendant, to abandon important constitutional

rights in order to gain some other benefit, is a

form of compulsion. eee v. Waterfront Commis-

sion, 378 U.S. 52 (1964); Sherbert v. Verner,

U.S. 398, 403-406 (1963); See also Moore, Criminal

Discovery, 19 Hastings L. J- 865, 912-913.(1988). To

say that criminal trial strategy sometimes requires

"the making of difficult decisions" is no answer, for

the courts have specifically held that options which

exact a penalty upon the exercise of the privilege

against self-incrimination violate the Fifth Amendment

United States v. Fratello, a et cf. Griffin v.

California, 380 U.S. 609 ( Malloy v. Hogan, 378

U.S. T (1964). And, as noted in Spevack v. Klein,

"In this context 'penalty' is not restricted

to fine or imprisonment. It means. . .

the imposition of any sanction which makes

the assertion of the Fifth Amendment privilege

‘costly’... ."

385 U.S. 511 at 515 (1967).

12.

—_ or

a

In this case, the respondent was given a

choice between exercising his Sixth Amendment

right to effectively confront and cross examine the

witnesses who testified against him, tha eyewitnesses,

by presenting evidence through the investigator that

might have impeached their credibility, and exer-

cising his Fifth Amendment right not to incriminate

himself. There is, of course, no question that an

accused's right to confront and cross examine

witnesses who testify against him is a minimum

requirement of due process. In re Oliver, 333 U.S.

257, 273 (1948); Washington v. Texas, 388 U.S. 14,

18 (1967); Specht v. Patterson, 386 U.S. 605 (1967).

To preclude respondent from exercising this

right was certainly a sanction of the most significant

proportions and to require him to choose between the

Sixth and Fifth Amendment rights confronts him with

the kind of dilemma that rises to the level of

constitutionally impermissible compulsion. 4 In

discussing the problem confronting an accused faced

with the choice of complying with court-ordered

» discovery which might incriminate him, or foregoing

altogether the presentation of evidence which could

be critical to his defense, one commentator noted:

"[S]ince the evidence or witnesses involved

might provide incriminating as well as

exculpatory information, the defendant would

be placed between the Scylla of providing the

prosecutor with potentially incriminating

information and the Charybdis of being pre-

cluded from offering elements of his

defense. "'

Note, Prosecutorial Discovery Under Proposed Rule

16, 85 Harv. L. Rev. 994, 998 (1972).

The Preclusion Sanction - A Violation of

the Constitutional Right to Present a

Defense, 8i Yale Ly 1342, 1354 (1972);

Moore, Criminal Discovery,19 Hastings

L.J. 865, S12, SIS (1968).

BELLI LOE MEI ET EE LO PLE EN SOS BEETS BTS BOLLE ET STAT GAN a

By putting respondent in this position the trial

court's order clearly created that kind of

intolerable tension between constitutional

rights which has been condemned by this Court.

Simmons v. United States, 290 U.S. 377, 394

(1968).

‘Petitioner argues, however, that

respondent has no standing to claim compulsion

because his decision to call the defense investigator

as a witness effectively waived any claim he might

have had to the protection of the Fifth Amendment

privilege as to the investigator's report. In support

of this contention, petitioner cites a series of cases

which deal with the concept of waiver of the privilege

against self-incrimination. Of these cases, a

number deal with situations where the accused

himself eleeted to take the stand, thus exposing

himself ‘to cross examination. Harris v. New York,

supra; McGautha v. California, 402 U.S. 183 (1970);

Brown v. United States, 356 U.S. 148 (1957); Raffle

v. United States, 271 U.S. 494 (1925). This case, of

course does not present the same situation. The

incriminatory information would not have been made

available to the prosecution because respondent

chose to testify, but because he called a witness, the

investigator.

The circumstances under which the investigator

was called also points up a flaw in petitioner's

waiver argument. In commenting on the cases where

this Court has upheld notice-of-alibi statutes, which

cases are relied upon by petitioner here in support of

‘its position, the United States Court of Appeals for

the District of Columbia observed:

"There has been some attempt in

recent years to increase the govern-

ment's right to discovery in criminal

cases - for example, through statutes

requiring the defense to give pretrial

notice of the names of witnesses to be

14,

te

ee m

EPO oe OR aie

called as part of an alibi defense. But

as the Supreme Court has emphasized

in holding such statutes constitutional

under the Fifth Amendment, they only

require the defense to turn over to the

government information which the

defense intends to reveal at trial. See

Williams v. Florida, 399 U.S. 78, 85,

(1970). Alibi statutes, the Court

reasoned, affect only the timing of

disclosure, and the defendant has no

Fifth Amendment privilege to mount

an eleventh hour defense. Id. at 82.

The government's proposal in the instant

case is entirely different. It would require

the defense toturn over information which

the defense never intended to use at trial."

United States v. Wright, 489 F. 2d 1181, 1194 (D.C.

Cir. 1973) (footnotes ommitted).

' Similarly, the trial court's order in this case

would have required respondent to disclose albeit

during trial, information which he could not have

intended before trial to use. The distinction which

must be looked to exists between an accused's right

to present a defense, and his right to challenge the

government's case against him. In the former

situation, with which the government's ''waiver"'

cases deal, the affirmative presentation of evidence

may well be considered sufficiently voluntary to

15.

i a a OS a ae ei a a a

: hm. Supine -recog,-ized ish-

how, "he latter ne gg

ever

There was no that

The petitioner offers ited

409 U.S. 322 (1972) in support of th

"waiver" argument.

In Couch the situation is distinguishable

from that in Nobles. There the

accused's voluntary relinquishment of

incriminating documents to an accountant,

who was not an employee of either the

accused or his attorney, was held to

prevent the assertion of the accused's

privilege against self-incrimination as

to those documents. In this case there

was no "relinquishment" of the reports

to the investigator, and the reports were

prepared specifically for the purpose of

assisting the accused in this case.

RRR TE NIE FAC INS SESE GE EPIL, IIL PEE

Patho eg

iar a Rae

Sy

II

THE TRIAL COURT'S ORDER DEPRIVED RESPON-

DENT OF HIS RIGHT TO THE EFFECTIVE

ASSISTANCE OF COUNSEL AND HIS RIGHT TO

PRESENT WITNESSES UNDER THE SIXTH AMEND-

MENT.

The order of the trial court precluded

respondent from offering impeachment evidence, and

thus denied him the opportunity to effectively con-

front and cross examine the government eyewitnesses

who placed him at the scene of the crime, certainly

a critical element of proof in the case against him.

By denying respondent this opportunity the trial court

denied him also his constitutionally guaranteed right

to the effective assistance of counsel and the right to

present witnesses. Washington v. Texas, 388 U.S.

14 (1967); Specht v. Patterson, 386 U.S. 605 (1967);

Powell v. Alabama, 287 U.S. 45 (1932); Coplon v.

United States,191 F. 2d 749, 757 (D.C. Cir. );

Henfield v. United States, 118 F. 2d 375 (D.C. Cir.

1941) Cross examination of the eyewitnesses was a

nullity absent the ability to present, through the

investigator, the evidence of their prior inconsistent

statements.

The trial court's order, if permitted to stand,

could have far broader implications that its mere

application to the respondent. As pointed out in

United States v. Cohen:

"An attorney is his client's advocate. His

function is to raise all the just and meritorious

defenses his client has.'' 388 F. 2d at 467.

Today it is increasingly apparant that "adequate fac-

tual investigation is clearly a component of effective

assistance of counsel. . . .'' United States v. Wright,

mee

supra at 1188 n. 6. : This is particularly true in

ight of thé vastly superior resources of the govern-

ment as compared to the accused's which give it a

correspondingly greater investigative ability.

Wardius v. Oregon, supra at 475 n. 9. Mr. Justice

Douglas commerted on this problem in his concur-

ring opinion in Wardius where he said:

"The Bill of Rights does not envision

an adversary proceeding between two

equal parties. If that were so, we

might well benefit from procedures

patterned after the Rules of the Marquis

of Queensberry. But, the Constitution

recognized the awesome power of

indictment and the virtually limitless

resources of government investigators.

Much of the Bill of Rights is designed

to redress the advantage that inheres

6 See e.g,,Shephard v. Hunter, 163 F. 2d 872

TOR Cie. 1967); People v. Bennett, 29 N. Y.

2d 462 (1972); A.B. A. Project on Standards for

Criminal Justice, Standards Relating to the

Defense Function, § 4.1 (Approved raft 1971).

Providing such investigative assistance for the

indigent defendant has proved difficult. See

e.g. Reilly v. Berry, 250 N.Y. 456, 461 (1929);

ote, The Indigent's Right to Adequate Defense:

Expert and Investigatorial Resources in

Cabinet Proceedings, 55 Corn. L. Rev. 632

(1970); Note, Ri net

o Aid in Addition to

Counsel for In ngent Defendants. 47 Minn. L.

ev. e

—

in a government prosecution. It is not

for the courts to Ghange that balance."

412 U.S. at 480.

It is because of these realities that investigative

services have been cited as one of the "chief assets"

of defender offices. Freeman, The Public Defender

System, J. Amer. Jud. Soc. 74, 76 (1948)

Yet now, even the little evidence that defender

service investigators are able to obtain from govern- |

ment witnesses is held up as so inherently lacking in

veracity (see Brief for Petitioner at 27 n. 11) that

the production of their reports is made a condition

~

~

One commentator has noted:

"Besides greater financial and staff resources

in which to investigate and scientifically

analyze evidence, the prosecutor has a

number of tactical advantages. First, he

begins his investigation shortly after the crime

has been committed when physical evidence

is more 'ikely to be found and when witnesses

are more apt to remember events. In addition

to the advantage of timing, the prosecutor may

compel people, including the defendant, to

cooperate. FinaHy, respect for government

authorities will cause many people to

cooperate with the police or prosecutor

voluniarily when they might not cooperate

with the defendant..'' Note, Prosecutorial

piscovery under Proposed Rule 16, 85 Harv.

. ev. ’ ~

19._

precedent to their giving testimony in impeachment. .

Petitioner is in reality asking that production of notes

be made an essential element of the competence of

a defense investigator as a witness. The govern-

ment counterparts of defense investigators certainly

do not find themselves similarly impugned by such a

requirement. It is true, that if a verbatim report

was made of a government witness's statement, a

different situation might exist, but then the protection

of Rule 16, Federal Rules of Criminal Procedure and

the Jencks Act would apply.

There is no question but that if an order such

as that of the trial court in this case were held to be

permissible, that it could cause a serious disruption

in the ability of defense counsel who regularly rely

on investigators to help prepare their case, to

adequately prepare for trial, particularly in situa-

tions involving complex factual issues. It is not un-

reasonable to foresee that investigators, fearful of

disclosure of their reports, may cease to memorial-

ize the results of their efforts. The delay between

the time of their investigation and the time of trial

could easily affect their ability to remember import-

and facts which were of importance to the defense.

Cf. United States v. Kovel, 296 F. 2d 918, 921 (2d

Cir. 1961).

It is also interesting to note petitioner's

contention that disclosure such as ordered by

the trial judge here would help prevent perjury

on the part of defender office investigators

when the availability of discovery to the defense

seems not in all cases to have corrected the

same problem insofar as government investi-

gators are concerned. See Sevilla, The

Exclusionary Rule and Police Perjury, 11S. D.

L. Rev. 839 (1974).

20.

—

In addition, it requires little imagination to

picture what regular disclosure of reports to the

prosecution by a member of the defense team would

do to what is often an already- strained relationship

between appointed counsel and his client. It is no

small irony that the availability of effective investi-

gative services which is considered an advantage to

the defendant suddenly becomes a disadvantage if an

order such as that of the trial court in this case makes

material for use by the prosecution. The position of

‘the investigator as a member of the defense team is

too closely identified with the interests of the accused

to permit a disclosure such as was ordered by the trial

court. Cf. Hoffa v. United States, 385 U.S. 293

(1966); O'Brien v. United States, 386 U.S. 345 (1966);

Black v. United States, 355 U.S. 26 (1966).

Wilkerson, Public Defenders As Their Clients

See Them, TAm. J.of Crim. L. I4T (April

21.

Til

THE ORDER OF THE COURT IN THIS CASE

VIOLATED THE PRINCIPLE OF RECIPROCITY

OUTLINED IN WARDIUS V. OREGON.

This Court's opinion in Wardius v. Oregon,

supra, dealt with the question of reciprocal :

discovery under a notice-of-alibi statute. In

Wardius, it was held that the Oregon notice-of-

alibi statute was unconstitutional because it

precluded an accused from presenting alibi

evidence as a sanction for failing to notify the

prosecution prior to trial of who the alibi-witnesses

would be. The statute was held to be uncon-

stitutional because it failed to provide the

accused the right to reciprocal discovery of the

State's rebuttal witnesses. 10 It was pointed out

that: '

10 On the advisability of ever preventing an

accused from presenting evidence as a

sanction for non-compliance with a court- |

ordered discovery rule, see Rodriguez v.

Superior Court, 9 Cal. App. 3d 493, 88 Cal.

Rptr. 154 (1970); State v. Benner, 284 A. 2d

91 (Maine Sup. Jud. Ct. 1971); Gilday v.

Commonwealth, 274 N. E. 2d 589 (Mass.

Sup. Jud. Ct. 1971). The American Bar

Association was able to conclude that the

sanctions in situations of non-compliance

with an alibi-notice requirement should not

include the denial of the right of the accused

to offer evidence. A.B.A. Standards of

Discovery and Proceduré Before Trial

Tapp ement, 5-6 (Approved Draft, October

2 = Ansett sae ane la

' _— nate terete tet

; '

trial court violated this principle.

_ defense. 18 U.S.C. 3500(e). Cf, United States v.

"The State, may not insist that trials be

run as a 'search for truth' so far ds

defense witnesses are concerned, while

maintaining 'poker game' secrecy for

' its own witnesses." 412 U.S. at 475.

It is clear, when analyzing the situation

that presents itself here that the order of the

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

passed by Congress in response to a concern by |.

the government that this Court's decision in Jencks

v. United States, 353 U.S. 657 (1957), would allow

defendants too great access to government investi-

gator's reports. See Palermo v. United States,

360 U.S. 343-4954). Because of this concern,

cases which have interpreted the Act have carefully

limited its coverage. Only reports which can

fairly be said to be the witness's own statement, a

"substantial verbatim record" of the witnese's words

rather than an investigator's interpretation of a

witness's words, are subject to disclosure to the

Augenblick, 393 U.S. 348 (1968); Palermo v. United

States, Supra at 352; United States v. Smaldone,

Zor F. oa SIT (loth Cir. 1973); United States v.

Missler, 414 F.2d 1293 (4th Cir. 1969); Menendez v.

23.

TREY SO eA aL a tl LEE LE LIMO MRIS SPN LOGY AGE PBIR ALIS 6 OMA Ay 1 can ne

United States, 393 F.2d 312 (5th Cir. 1968), UJ

Reports which do not meet this standard are

protected from disclosure to the defense under

the Act even if a government’ witness testifies

during trial. United States v. Hoffa, 349 F.2d 20

(6th Cir. 1965).

; Petitioner appears to contend that a type

of "reverse Jencks Act" should apply in this case

to require defense witnesses to surrender to the

prosecution copies of any prior statements they

‘ * :

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

"The term statement, as used in subsections

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

to any witness called by the United States,

means---

(1) a written statement made by said witness

and signed or otherwise adopted or approved

by him;

(2) a stenographic, mechanical, electrical,

or other recording, or a transcription

thereof, which is a substantially verbatim

recital of an oral statement made by said

witness and recorded contemporaneously

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

have made upon completing their testimony.

(Brief for Petitioner at 25) }

This requirement, it is argued, is

mandated by the concept of fairness: What the

defense is entitled to, the government should be

as well; as well as the need for criminal trials

to be a "search for truth."

Amici recognize that the task of the

prosecution would be easier if they could have

unrestricted access to defense files. But, apart

from the concerns expressed in the preceding

arguments, and the fact that such a result was not

within the contemplation of Congress, United

States v. Wright, supra at 1190, this practice at

least insofar as it may be a justification for the

court's order in this case, ignores the decision

in Wardius v. Oregon, supra which holds that

"¢undamental fairness’ requires that discovery,

particularly that which flows from the defense

to the prosecution, be reciprocal.

There was no evidence that the investigator's

report was a "substantial verbatim reco " of any

prior statement of his. In fact there is nothing in

the record which reflects that the investigator said

“ That this rationale is the basis for the

trial court's ruling is apparent from a

reading of the proceedings below.

The following comment of the trial judge

underscores this fact:

"Tt seems only fair, if the government

gives you copies of all the statements

made. I think that the government is

entitled, in view of the attempt at least

of impeachment to see a copy of the

statement that this witness made.’

Brief for Petitioner at ll.

4 25.

. . nition STEIN AT HS «pe

ree PTL he

anything about the eyewitnesses. The indication

is to the contrary, that the report sought contained

statements of the government witness not of the

investigator. (Brief for Petitioner at 8-12) Thus

if the court's order in this case were permitted. to

stand, the government would be entitled to

discovery of reports prepared by defense

investigators, whether or not they were

"statements" within the meaning of the Jencks

Act, while the defense would not have a similar

right of disclosure from prosecution witnesses.

This result is impermissible under Wardius.

*The petitioner also argues that the order

of the trial court was consistent with the new

Yederal Rules of Evidence, Rule 613(a), discussed

by petitioner, provides:

"In examining a witness concerning

a prior statement made by him,

whether written or not, the statement

need not be snown or its contents

disclosed to him at that time, but on

request the same shall be shown to

opposing counsel. "

Aside from the fact it was not in effect at

the time that the events in this case occurred, Rule

613 does not affect the impropriety of the court's

order. Even in the unlikely event that Rule 613

had some broadening impact on the application of

the Jencks Act, the fact remains that the court's

order required respondent to submit to a form of

discovery impermissible under Wardius.

It is also contended that since Rule 612 of the

Federal Rules of Evidence may have made the

investigator's notes discoverable, the order of the

w—

trial court was proper. !3 This argument, of course,

has no application in the present situation because

Rule 612 applies only to writings used by witnesses

to refresh their memory either, ''(1) while

testifying, or (2) before testifying. . - - :

reading of the record discloses no evidence that the

defense investigator had used his notes or would

have used his notes to refresh his memory.

Petitioner argues that "If Bond [the defense

investigator] refreshed his recollection by reviewing

his report before testifying... - " his report may

13 It is by no means evident that petitioner's

argument in this regard is @ tenable one.

A reading of Rule 612 reveals that no

sanctions are provided for an accused's

failure to comply with its provisions,

while failure of the prosecution to comply

with the Rule can result in the striking

of testimony or the declaring of & mistrial.

This difference can be interpreted as a

reflection of an intent on the part of the

drafters not to make available any

sanctions for non-compliance by the

accused. See footnote 18, supra. This

question should and need not be decided

here because it is not even implicity

presented in the record.

EEN EER RE PM SE WM MEET RL

have been discoverable. (Brief for Petitioner

at 42)14 But this possibility, and that is all it is,

is of no help to petitioner's position:

"[I]t misses the point to argue that

since the government might obtain

14 Petitioner invites this Court to presume that

the defense investigator must have reviewed

his notes prior to testifying or, alternatively,

to hold that ''a trial court might have inherent

power to demand that the investigator

_refresh his recollection as a pre-condition

to testifying'’ (Brief for Petitioner at 43 ° .

n. 23) thereby rendering the investigator's

notes discoverable under Rule 612. Amici

is tempted, totally as a conjectural

matter, to accept this invitation, as a :

patent violation of the Wardius reciprocity

principle would result. The Jencks Act has

been interpreted to render only substantially

verbatim accounts of government investigators

producible while the petitioner's suggestion

would render all defense investigator's

account producible. This lack of

reciprocity would clearly contravene Wardius.

‘28.

the papers by another means it

should be permitted to compel the

possessor to produce them over his

claim of privilege - that the govern-

ment might obtain these documents

without compelling [the defendant]

to incriminate himself is hardly a

justification for compelling [him]

to incriminate himself. We cannot

ignore the dictates of the Fifth

Amendment on the ground that it

would be more convenient or

efficient to do so."

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

The order of the trial court here was in

error as it has no support in statute or in case

law, and, most importantly, because it required

the defendant to be the source of,information that

could be used to convict him. On this point, the

comments of Mr. Justice Brennan in discussing

the rationale behind excluding evidence from

criminal prosecutions obtained at the expense of

constitutional guarantees are of significance:

''Too many of us seem to have forgotten

the true office of the constitutional

procedural safeguards. . .We have for -

gotten that these safeguards, while they

do indeed make harder the conviction of

an accused, were not provided for that |

purpose -- the Framers of the Constitution

weren't 'soft on criminals.' These safe-

guards are a check upon government -- to

guarantee that government shall remain the

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

Until the "shield" provided government

witnesses by the Jencks Act is removed by

legislation, an order such as that proposed by

the trial court denies the accused statutory

parity with the prosecution in the area of

discovery. That Congress failed to enact

legislation providing for compelled disclosure

by.a member of the defense team of evidence

which might damage the cause of the accused,

may well be a recognition of the fundamental

guarantees of the Fifth and Sixth Amendments.

15.

Brennan, The Criminal Prosecution:

oye Event or Quest for Truth?

as e e e e s . )

CONCLUSION

For the foregoing reasons, as well as those

contained in respondent's brief, amici respectfully

submit that this Court affirm the decision of the

Court of Appeals.

John J. Cleary

Warren R. Williamson

Federal Defenders of San Diego, Inc.

925 First Avenue, Suite 260

San Diego, California 92101

Attorneys for Amici Curiae

Of Counsel,

Mr. Sheldon Portman, Chairman

California Public Defenders Association

Santa Clara County Public Defender

Mr. James Doherty

Chairman, Amicus Committee

National Legal Aid and

Defender : Association

Cook County Public Defender

Mr. Fred Okrand

Legal Director

American Civil Liberties Union

-of Southern California

rs

baa Tes + ‘ Tew i a