Amicus Curiae Brief — United States v. Nobles

Supreme Court of the United

Octoper Term, 1974

No. 74-634

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 FOR AMICUS CURIAE FEDERAL PUBLIC

-DEFENDER OF NEW JERSEY, IN SUPPORT

OF RESPONDENT

LSS SS DSSS

Roger A. LowenstTern

Federal Public Defender

976 Broad Street

Newark, New Jersey 07102

» Counsel to Amicus Federal

Public Defender of New

Jersey

With him on the brief:

Dav A. RuHNKE

Seton Hall Law School

1095 Raymond-Boulevard

Newark, New Jersey 07102

Adams Press Corp., 11 Commerce Street, Newark, N. J.—Market 3-8611-12

7

TABLE OF CONTENTS

STATEMENT OF INTEREST OF AMICUS

ARGUMENT oF Law;

I—The decision below may be affirmed on set-

tled principles of evidence

“A. Under common law rules of Seidonion’

governing the trial in this case, the in-

_vestigator would not have been required

to turn over copies of his notes to the

Government unless and until he used

those ndtes to refresh his memory ..........

B. Even had the investigator used his notes

' prior to testifying at trial, and even had

the new rules of evidence been in effect,

the Government would still not have

been entitled to use the reports for the

purpose of wets rmmepaeag. the investi-:

gator

1. The investigator’s notes are not a

“statement” within the meaning of

new rule 613(a)

2. New rule 612 also has no application

to the facts of the present case —........

IIl—Among the complex of values inherent in -

the Fifth Amendment is the concept that

the defendant in a criminal case is under

no compulsion to provide the prosecution

with information that the defendant has no

desire to use at trial

ii TABLE OF CONTENTS

oes PAGE

A. The defense investigator’s notes could

not have been made the subject of a

pretrial discovery order 7

B. The Jencks Act is not a two-way street 8

‘C. Recent decisions of this Court do not

justify the routine discovery by the

government of statements of defense

witnesses ...... 10

I{I—An investigator for the-defense is not just

any witness 12

Coxcuusion - 15

| Cases Cited

Ashwander v. Tennessee Valley Authority, 297 U. S.

288, 346-48 (1936)...... 2

. Brady v. Maryland, 373 U. S. 83 (1963) 9

‘ Brooks v. Tennessee, 406 U. S. 605 (1972)... 10

Jencks v. United States, 353 U. S. 657 (1957)... 6

Kane v. United States, 431 F. 2d 172, 174 (8th Cir.

1970) 5

McQueen v. Swenson, 498 F. 2d 207, 216 (8th Cir.

__ 1974) 13

Palermo v. United States, 360 U. s. 343 (1959). ۩=6 5

People v. Chavez, ps Cal. App. 3d 454, 109 Cal. Rptr.

157 =(1973) 14

- Schmerber v. California, 384 U. S. 757, 762 (1966). 11

Shepherd v. Hunter, 163 F. 2d 872 (10th Cir. 1957)... 13

‘ United States v. Brown, 501 F. 2d 146, 159 (9th Cir.

1974) 3,8

N

TABLE OF CONTENTS iii

PAGE

United States v. Burr, 25 F. Cas. 30, 32 (No. 14,

692d) (Cir. Ct. of Va. 1807) 12

United States v. Krilich, 470 F. 2d 341 (7th Cir.)

cert. denied 411 U. S. 938 (1972) 5

United States v. Socony Vacuum Oil Co., 310 U. S.

150, 233 (1940) 3

United States v. Swindler, 476 F. 2d 167, 169 (10th

Cir. 1973) , 5

United States v. Wright, 489 F. 2d 1181, 1188 (D. C.

Cir. 1973) 2, 3, 8, 9, 13, 14

Wardius v. Oregon, 412 U. S. 470 (1973)... 11

Williams v. Florida, 399 U. S. 78 (1970). 10, 11

United States Constitution Cited

Fifth Amendment 7, 8, 10-14

Sixth Amendment 13,14

Fourteenth Amendment 10

Statutes Cited

Criminal Justice Act 1

Jencks Act, 18 U.S.C. Sec. 3500 (1970) §, 8-10

(P.L. 93-595, 88. Stat. 1929) 4

Rules Cited

Federal Rule of Criminal Procedure:

16(c) 7,8

Federal Rules of Evidence:

612 5, 6

613(a)

iv TABLE OF CONTENTS

Other Authorities Cited

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

Standards Relating to Providing Defense Services:

(Approved draft, 1968)—

Sec. 1.5

(Approved draft, 1971)—

Sec. 4.1

Goldstein, The State and the Accused: Balance of

Advantages in Criminal Procedure, 69 Yale L. J.

1149, 1185-92 (1960)

The Indigent’s Right to an Adequate Defense: Ex-

pert and Investigational Resources in Criminal

Proceedings, 55 Corn. L. Rev. 632 MT Reniicniniconie

McCormick on Evidence, See. 9, p. 17 (2d ed. 1972)

Nakell, Criminal Discovery for the Defense and

Prosecution—The Developing Constitutional Con-

PAGE

13

13

12

13

siderations, 50 N. Car. L. Rev. 437, 443-44 (1972)_..10-12

Wigmore, Evidence, Sec. 762 (Chadbourn Rev. 1970)

1 Wright, Federal Practice and Procedure, Sec. 255

at 520 (1969)

3

IN THE

Supreme Court of the United States

Octoser Term, 1974

No. 74-634

”~

~ s

UNITED STATES OF AMERICA,

Petitioner,

Vv. ; ait a, B |

ROBERT LEE NOBLES,

Respondent. ~

On Writ of Certiorari to the United States Court of

Appeals for the Ninth Circuit

s

—

BRIEF FOR AMICUS CURIAE FEDERAL PUBLIC

DEFENDER OF NEW JERSEY, IN SUPPORT

OF RESPONDENT

Statement of Interest of Amicus

Amicus is the Office of the Federal Public Defender

for the District of New Jersey. The Federal Public De-

fender’s Offices have been organized pursuant to the

Criminal Justice Act. The Federal Public Defender Office

2

in New Jersey represents indigent defendants in the New

Jersey federal districts courts. The staff of the office con-

sists of five attorneys, two investigators and two legal

secretaries. Without the assistance of the two investi-

gators, the office of the Amicus could not effectively main-

tain its large case load, nor could clients be effectively

represented. The principal protagonist in the case pres-

ently before this Court, Mr. Bond, is the defense investi-

gator in the Federal Public Defender’s Office in Los An-

geles. The discovery of Mr. Bond’s notes and the legal

principles asserted by the government in this case touch

upon the very effectiveness of the Office of the Federal

Public Defender in providing adequate representation to

its clients, and for that reason, this brief is submitted as

a friend of the Court.

The decision below may be affirmed on settled

principles of evidence. :

Ordering a defense investigator to make available to

the Government a copy of interview notes raises legal

questions that “are as unchartered as they are funda-

mental.” United States v. Wright, 489 F. 24 1181, 1188

(D. C. Cir. 1973). The decision below may be affirmed,

however, on settled principles of evidence. See Ashwan-

der v. Tennessee Valley Authority, 297 U. 8. 288, 346-48

_ (1936) (opinion of Brandeis, J.,' concurring).

3

A. Under common law rules of evidence governing the

trial in this case, the investigator would not have been

required to turn over copies of his notes to the Govern-

ment unless and until he used those notes to refresh

his memory.

It, is a “hornbook rule of evidence” that a writing used

by a witness to refresh a temporarily stale memory must

be turned over to the opposing party for cross-examina-

tion purposes. See, e.g., United States v. Wright, 489 F.

2d 1181, 1188 (D. C. Cir. 1973); McCormick on Evidence,

§ 9, p. 17 (2d ed. 1972); 3 Wigmore, Evidence, § 762

(Chadbourn Rev. 1970); but ef. Uiited States v. Socony

Vacuum Oil Co., 310 U. S. 150, 233 (1940) (opposing

counsel not entitled to inspect transcript of prior testi-

mony where judge read portions thereof to refresh a

witness’ memory).

In. the case at hand, the trial judge’s order may best

be described as premature. The investigator never got

the chance to testify.

In his dissent below, Judge Kilkenny assumed that the

investigator, upon taking the stand, “would have said

that he used the statement to refresh his memory.”

United States v. Brown, 501 F. 2d 146, 159 (9th Cir.

1974) (opinion of Kilkenny, J., dissenting). The Govern-

ment, arguing alternatively, makes a similar assumption.

(Gov’t’s Brief at 40.) Leaving aside the propriety of as-

suming critical facts in a criminal case, an opposite as-

sumption to the one used by the dissenting judge and

the Government is equally if not more likely.

A defense investigator is not just any witness. It is

fair to assume that defense counsel and investigator con-

ferred on the Nobles defense on numerous occasions. It

was crucial to the defense that the two eyewitnesses be

discredited, and certainly, the statements given by the

witnesses to the investigator were of great value to the

“=

4

defense in that effort. It is unlikely that Mr. Bond would

have had to refer to his notes to recall the statements on

the day of the trial. The much more likely assumption

is that Mr. Bond would have testified from his own inde-

pendent recollection of the statements. Therefore, on com-

mon law principles of evidence, the Government would

not have been entitled to use the notes on cross-examina-

tion.

Even had the investigator used his notes prior to testi-

fying at trial, and even had the new evidence rules

been in effect, the government would still not have

been entitled to use the reports for the purpose of

cross-examining the investigator.

The new Federal Rules of Evidence (P.L. 93-595, 88

Stat. 1929 et seg.) were signed into law by President Ford

on January 2, 1975. They take effect on July 1, 1975, and,

of course, in no way governed the conduct of the trial

here under scrutiny. Nevertheless, the Government argues

that the new rules are persuasive authority for what com-

mon law rules should be. (Gov’t’s Brief at 35-44.) As

discussed above, settled principles of common law evi-

dence militate against the result urged on the Court by

the Government. It is the position of amicus that the

new rules of evidence are persuasive only on the ques-

tion of what rules of evidence congress feels should gov-

ern the federal practice. However, even accepting argu

endo the proposition that the new rules should control

this case, the result is identical. First, unless and until

there was a showing that the investigator had used the

notes to refresh his memory prior to or during trial, the

Government was not entitled to make any use of them.

Second, by the same token, unless the investigator’s notes

rose to the status of a “statement”, the Government was

not entitled to inspect or use the notes.

5

1. The investigator’s notes are not a “statement” with-

in the meaning of new rule 613(a)

Under new rule 613(a), where counsel is examining a

witness concerning the witness’ prior statement, that

statement must be made available for inspection at that

time upon the request of opposing counsel. In the pres-

ent case, the Government concedes that something was

indeed made available to it concerning a “statement” of

the eyewitness Van Gemeren. (Gov’t’s Brief at 36-37, n.

13.) The “statement” referred to is the disputed investi-

gator’s report. The eyewitness in no way endorsed this

report. It is highly unlikely that notes of an interview

made by the interviewing party without the review or en-

dorsement of the person being interviewed can even rise

to the status of a “statement.” See, e.g., Palermo v.

United States, 360 U. S. 343 (1959) (summary of interroga-

tion not witness’ statement) ; United States v. Swindler, 476

F. 2d 167, 169 (10th Cir. 1973) (informal descriptions of

testimony of several other witnesses not their state-

ments); United States v. Krilich, 470 F. 2d 341 (7th

Cir.), cert. denied 411 U. -S. 938 (1972) (witness’ sum-

mary of investigation not statement); Kane v. United

States, 431 F. 2d 172, 174 (8th Cir. 1970) (interviewer’s

- notes not statement where witness did not adopt or ap-

prove contents of notes). Therefore, even were new rule

613(a) to apply retroactively to the facts of this case, the

item in question cannot be said to be a “statement”.

4

2. New rule 612 also has no application to the facts

of the present case

| Under new rule 612 of the Federal Rules of Evidence, -

a witness who uses a writing to refresh his or her

memory while testifying or prior to testifying must make

6

the writing available to the adverse party. The govern-

ment contends that the new rule will create a two-way

Jencks Act. (Gov’t’s Brief at 39.) That contention is

patently nonsensical.

In enacting the Jencks Act, 18 U.S.C. § 3500 (1970),

Congress sought to limit the effect of this Court’s deci-

sion in Jencks v. United States, 353 U. S. 657 (1957).

Neither that decision nor the congressional enactment

have anything to do with the subject matter of new Rule

612. The rule is concerned with the evidentiary question

of refreshed memory. Absent a showing that the witness’

memory had to be refreshed prior to or during the trial,

the rule does not operate. Imprecise analogies in the

Advisory Committee’s Note to the contrary notwithstand-

ing,’ the rule is concerned solely with refreshed memory.

The Government concedes this much:

[New Rule 612] 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 recol-

lection. (Gov’t’s Brief at 40, emphasis added)

The Government argues that 1) this Court should as-

sume the retroactive application of the new rules, and,

2) this Court should also assume the existence of the

rules’ triggering event—use of a writing to refresh

memory. Neither assumption is warranted by law or

fact.

*In discussing the new rule, the Advisory Committee made

extensive analogy to the Jencks Act, but only so far as the Com-

mittee saw the Jencks Act as promoting “the search of credibility

and memory.” 56 F.RD. at 277. The Committee went on to

note that the Jencks Act operates whether or not the government

witness uses a statement to refresh his or her memory, a situation

beyond the scope of the new rule.

Sheds nett

7

.

II

Among the “complex of values” inherent in the

Fifth Amendment is the concept that the defendant

in a criminal case is under no compulsion to provide

the Government with information that the defendant

has no desire to use at trial.

A. The defense investigator’s notes could not have been

made the subject of a pre-trial discovery order.

Federal Rule of Criminal Procedure 16(c) permits the

Government to obtain a court order conditioning a defend-

ant’s right to discover government information on his or

her willingness to permit the government, in return, “to

inspect, copy or photograph” material which “the defend-

ant intends to produce at trial .. .” F.R.Crim.P. 16(c).

The defendant here did not seek to introduce the inves-

tigator’s notes into evidence or in any other way “pro-

duce” the report at trials Counsel had a copy of the re-

port with him at counsel ‘table. Certainly that fact alone

would not entitle the Government to examine and use it.

To the extent, then, thatthe reciprocal discovery provi-

sions of the federal rules are a permitted derogation of

the principle that the government must convict without

assistance from the accused, the Government’s argument

reaches beyond the limits of permitted pretrial discovery.

The fact that the Government’s right to discovery is

limited to documents which the accused intends to produce

at trial is central to insulating the rule from constitution-

al challenge. See 1 Wright, Rederal Practice and Proce-

dure § 255 at 520 (1969). F.R.Crim.P. 16(c) goes to the

very edge of the Fifth Amendment’s protections. Sce 39

F.R.D. 252, 272 and 277 (1966) (opinions of Justices

Black and Douglas, respectively, dissenting from the pro-

posed amendments to F.R.Crim.P. 16.) The position

\

\

\

8

urged by the Government goes beyond Rule 16’s limits

and intrudes into areas protected by the Fifth Amend-

ment.

B. The Jencks Act is not a two-way street.

As noted earlier much of the Government’s argument

centers upon the idea that it is unfair that the Govern-

ment must make available to the defense statements of

Government witnesses at the close of their direct testi-

mony without the defense having, to assist the Govern.

ment in return. (Gov’t’s brief at 23-98.) A mutual ex.

change of statements is not the issue here. In his dissent

below, Judge Kilkenny, who assumed that the investigator

would have had to have refreshed his recollection had he

been permitted to testify, said the issue was simply

a common law evidentiary question of whether a

witness who was called for impeachment purposes

must produce the notes he admittedly made on the

subject of impeachment. United States v. Brown,

501 F.2d at 161 (9th Cir. 1974) (opinion of Kil-_

kenny, J., dissenting).

The Government does not urge (as it could not) that

the Jencks Act, by its terms, upplied to the facts of this

ease.” The end-result is, however, the same. As in

United States v. Wright, supra,

the Government proposes that this ‘court adopt a

common law rule of evidence which requires the de-

fense, after its witness has testified on direct ex-

amination, to turn over to the prosecution prior

* The Jencks Act requires the government to provide to the

. defense statements of government witnesses. 18 U.S.C. § 3500

(1970).

9

statements of that witness so that those statements

could be used by the Government to cross-examine

the witness. In effect, this rule would make the

Jencks Act applicable in principle if not in ex-

press terms to the defense as well as the prosecu-

tion. 489 F.2d at 1190 (D.C.Cir. 1973).

In Wright, supra, the District of Columbia Circuit con-

sidered the argument in detail, and concluded that

The defense has no duty to help the prosecution

convict the defendant. We therefore reject any

rule which would require the defense to turn over

to the prosecution prior statements of defense

witnesses which could be used by the prosecution

as evidence against the accused. Id. at 1195 (D.C.

Cir. 1973).

Despite the clear treatment of this kind of discovery

in rule and statute, the Government maintains that if the

defense has access to statements of Government witnesses,

then the Government ought to have access to statements of

defense witnesses. Complete mutuality of discovery may

be an appropriate guide where private parties dispute

over private matters, but where the Government seeks

to enforce criminal laws, mutuality is inappropriate. For

example, the Government is under a duty to reveal infor-

mation to the defense which may bear on the innocence of

the accused, Brady v. Maryland, 373 U.S. 83 (1963). The

defense could certainly never be required to respond in

kind.

Except in pursuit of abstract symmetry, the dis-

covery that a defendant can get is not logically re-

lated to what the prosecution gets. To deny defense

discovery because of limitations that the privilege

against self-incrimination imposes on prosecution

“=

10

discovery is to transform a constitutional protection

so important that conditions cannot be imposed on

its exercise into an excuse for a diminution of the

defedant’s chance to clear himself. Nakell, Crim-

imal Discovery for the Defense and Prosecution—

The Developing‘ Constitutional Considerations, 50

N.Car.L.Rev. 437, 443-44 (1972) (footnote omitted).

Ignoring the fact that disegvery in a criminal case can

never be a free-flowing, .two-way street between the ac- ,

cuser and the accused the Government urges°that this

Court add a reciprocity feature to the Jencks Act. Neither

the Act nor the new rules of evidence justify a result

that so violates the protections of the Fifth Amendment.

C. Recent decisions of this Court do not justify the routine

discovery by the government of statements of defense

witnesses.

In recent years, this Court has had occasion to con-

sider the reach of the government’s right to diseover éle-

ments or strategy of a defense to a criminal charge. Com-

pare Williams v. Florida, 399 U.S. 78 (1970) (state alibi-

notice requirement held constitutional) with Brooks vy.

Tennessee, 406 U.S. 605 (1972) (state requirement that

defendant testify as first defense witness, or not at all,

held violative of Fourteenth Amendment). In reaching

its decisions, this Court has always emphasized that the

results followed from the premise that the defense need:

only reveal to the Government that which would appear

anyway. Hence, in Williams vy. Florida, supra, pretrial

disclosure of the names of alibi witnesses affected only

the timing of disclosure. In effect, this Court held in

Williams that an accused does not have a right of Fifth

Amendment dimension to launch a last-ditch defense. 399

U.S. at 81.

il

In this case, the Government seeks this Court’s ap-

proval of an attempt to obtain materials which the defend-

~ ant never intended to us¢ as evidence or present as part

of the defense. The Government does not justify its dis-

covery argument by claiming the neéd to avoid surprise,

cf. Wardius v. Oregon, 412 U.S. 470 (1973), nor does the

Government argue that it seeks only that which would be

revealed at trial, cf.Williams v. Florida, supra. Instead,

the Government seeks a rule which ‘would require a de-

fendant to assist the Government in its attempts to dis-

mantle the defense. The Fifth Amendment bars that

‘result. , :

Despite the Government’s arguments to the contrary,

\(Gov’t’s Brief at 45-48), the Fifth Amendment is some-

thing more than a personal privilege of a person accused

of a crime. Rather, it reflects and protects a “complex

of values.” Schmerber vy. California, 384 U. S. 757, 762

(1966).

The Amendment is not “a friend of open inquiry.”

Nakell, supra, 50 N.C. L. Rev. at 481. ‘ Instead, it em-

bodies and protects fundamental value judgments of a

free society. One of the most fundamental of those judg-

ments is that the Government must shoulder the burden

of conviction without the aid of the accused. Because

that judgment is fundamental to an accusatorial system

of criminal justice, the Amendment cannot long withstand

nice distinctions. As Prof. Nakell concludes,

Vigilance [in enforcing the amendment’s protec-

tions] must be broader than the actual tere

of abuse and nearly as broad as their possible scope.

Because circumstances in which the application of

the privilege against self-incrimination seems ex-

travagant are . . . easy to find, the privilege is a

- common focus of majoritarian frustration. ‘For this

12

reason, the important work of the privilege needs

the sanctity of a fundamental charter and a strong

tradition of liberal interpretation. Being too often

‘unpopular, it cannot withstand niggardly enforce-

ment or cautious interpretation based on academi-

' ¢ally narrow distinctions. Nakell, swpra, 50 N.C. L.

Rev, at 515-16. .

In a criminal prosecution, the accused has few enough

friends, few enough advantages. See generally, Goldstein;

The State and the Accused: Balance of Advantages in

Criminal Procedure, 69 Yale L. J. 1149, 1185.92 (1960).

At the very least, a defendant in Mr. Nobles’ position

has the right to expect that his witnesses will be free to

testify from their independent memory of facts crucial to

the defense without fear that otherwise irrelevant notes

will thereby be“inade available to the Government and

scrutinized for matters which will discredit the witness

and, as a result, the defense.

Implicit in the Fifth Amendment is the right to pre-

pare and present a.defense. United States v. Burr, 25 F.

‘Cas. 30, 32 (No. 14, 692d) (Cir. Ct. of Va. 1807). The

reversal of the Ninth Circuit in this case would place an

impermissible burden on that right.

\ i

a Oe III

An investigator for the defense is not just any

witness.

With minor exceptions, the arguments of amicus to this

point apply with equal force to any witness for the de-

fense. The facts of this case do not, however, involve

merely “any witness.” The witness whose testimony was

13

excluded was a defense investigator, ~ vital member of

the defense team. Where the Government seeks to dis-

cover and use notes of a defense investigator, it must

show an interest superior to the accused’s Sixth Amend-

ment right to a vigorous and effective defense.

Adequate factual investigation is clearly a component

of effective assistance of counsel. McQueen v. Swenson,

498 F.2d 207, 216 (8th Cir. 1974); United States v. Wright,

489 F.2d 1181, 1188 n.6 (D.C.Cir. 1973) ; Shepherd v. Hun-

ter, 163 F.2d 872 (10th Cir. 1957); Note, The Indigent’s

Right to an Adequate Defense: Expert and Investigational

Resources in Criminal Proceedings, 55 Corn. L. Rev. 632

(1970).

The American Bar Association in setting standards for

the provision of defense services to indigents concluded

that the failure to provide adequate investigative support

rendered any attempt to provide defense services ipso

facto sub-standard. A.B.A. Project on Standards for

Crimimal Justice, Standards Relating to Providing De-

fense Services § 1.5 (Approved draft, 1968).

Additionally, in considering the elements of an ade-

quate defense, the A.B.A. Project concluded:

It is the duty of the lawyer to conduct a prompt

investigation of the circumstances of the case...

regardless of the accused’s admissions or statement

to the lawyer of facts constituting guilt. A.B.A.

Project on Standards for Criminal Justice, Stand-

ards Relating to the Prosecution Fumction and the

Defense Fumction § 4.1 (Approved draft, 1971).

In a real sense, a criminal defendant’s Fifth ard Sixth

Amendment privileges combine when the issue is the

availability to the Government of a defense investigator’s

notes. Even the scattered state decisions arguably sup-

‘

14

porting the Government’s position® do not go so far. If

an investigator has to worry about preparing notes and

internal reports in such a fashion as to leave no room

for expert cross-examination, the investigator’s ability to

function will be substantially impaired.

The Fifth Amendment commands that the Government

bear its burden without help from the accused. The Sixth

Amendment entitles the defendant to a vigorous and com-

petent defense, including the benefit of a full factual in-

vestigation. It is immaterial whether the final product of

that investigation is denominated “work product” or “priv-

ileged materials.” It unduly strains-the Fifth Amendment’s

protections to require that a defense investigator who

wishes to testify on behalf of the defendant must auto-

matically deliver to the Government prior notes on the

subject of his testimony regardless of the defense’s in-

tention whether or not to use the material.

In attempting to pin down and name this class of> evi-

dence, it is possible to lose sight of the fact that what

the Government is seeking is a rule which would require

a defendant to present potentially useful information to

the Government which the defendant never intended to

use. The Fifth Amendment prevents that result.

“4

*The cases are collected in United States v. Wright, 489 F.

2d 1181, 1190 n.11 (D.C. Cir. 1973). See also People v. Chavez,

33 Cal.App.3d 454, 109 Cal.Rptr. 157 (1973).

With the exception of New Jersey, none of the decisions have

been followed in any reported case within the jurisdiction so far

as their’ “Jencks-in-reverse” aspect is concerned.

15

CONCLUSION

For the reasons above, the decision of the Ninth

Circuit should be affirmed.

Respectfully submitted,

Rocer A. LowEnsTEIn,

Federal Public Defender,

976 Broad Street,

Newark, New Jersey 07102.

Counsel to Amicus, :

Federal Public Defender of New Jersey.