*1 STATES. UNITED CAMPBELL et al. v. January 23, Argued 1961. 1960. Decided No. 53. December *2 argued Melvin Louison and Lawrence F. O’Donnell S. them the brief was petitioners. the cause for With on Leonard Louison.
Roger the cause for the States. argued G. Connor United Rankin, Assistant On the brief were Solicitor General Kirby Attorney Wilkey, Rosenberg General Beatrice Patterson. W. opinion delivered the
Mr. Justice Brennan Court.
After a
direct exami-
government witness testifies on
nation
a federal criminal
the trial court
prosecution
motion of
required,
Act,1
under the so-called Jencks
on
production
1 18 U. S. C. 3500. Demands
statements
§
for
reports witnesses.
“(a)
States,
prosecution brought by
In
criminal
the United
possession
no statement or
in the
States which
defendant,
to order
produce,
the United States to
impeachment purposes,
pretrial
defined
statements of the
witness,
parts
of such statements as determined under
(c),
subsection
subject
relate to the
matter of his
trial testimony
possession
and are
of the United
States. The
petitioners
conviction of the
in the District
Court for the District of Massachusetts for bank robbery
in violation of 18 U. S. C. 2113 was
§
sustained
Appeals
Court of
for the First Circuit.
“(b) by After a witness called the United has on 'States testified examination, shall, direct the court defendant, on motion of the order produce any defined) the (as United States to statement hereinafter possession of the witness in the of the United States which relates to subject matter as to which the witness has testified. If the entire any contents of such subject statement relate to the matter of testimony witness, of the the court shall order it to be delivered directly to the defendant for his examination and use.
“(c) any If the United States claims that statement ordered to produced be under this section matter contains which does not relate subject to the testimony witness, matter of the of the shall court order the inspection United States to deliver such statement for the Upon delivery of the court camera. such court shall excise portions subject of such statement which do not relate to the testimony excised, matter of witness. With such material delivery the court shall then direct of such statement to the defend- If, pursuant procedure, any portion ant for his use. to such of such statement is withheld from the objects defendant and the defendant withholding, adjudication such and the trial is continued to an guilt defendant, the entire text of be such statement shall Report of an of an interview possession admit Interview FBI agent witness, an with that but contended The trial held this fell outside the statute. inquiry jury present, an without at the conclusion of deliver the which he refused to order the States to their Report petitioners, Interview to the and also denied testimony pro- motion to strike the of the witness. The inquiry important at that raises in the questions cedure granted administration of the Jencks and we certio- Act, questions. rari limited the review of those S.U. 909. government depos- Dominic Staula,
itor who was in the bank at robbery. the time of the On petitioner direct examination he identified the Lester as preserved by and, United States the event the defendant appeals, appellate be pur- shall made available to the for the court pose determining ruling judge. the correctness of the of the trial any pursuant Whenever statement is delivered to a defendant section, discretion, upon application the court in its of said may defendant, proceedings may recess in the time it trial for such reasonably required determine to be for the examination of such preparation statement said defendant and his for its use in the trial. “ (d) comply If the United States elects not to with an order of the (b) (c) paragraph court under hereof to to the defendant deliver statement, portion may direct, such or such thereof as the court witness, the court shall strike from the record the proceed the trial shall unless the court in its shall deter- discretion *4 justice require mine that the interests of that a mistrial be declared. “(e) ‘statement,’ (b), (c), The term as used in subsections (d) any by of this section in relation to witness called States, means—
“(1) by signed a written statement made said or adopted approved by him; otherwise or “(2) electrical, recording, stenographic, mechanical, or other transcription thereof, substantially is a recital of verbatim agent an oral statement made said witness to an Govern- contemporaneously making ment and recorded with the of such oral 85-269, Sept. 2, 1957, statement.” Added Pub. L. 71 Stat. 595. one of the robbers. on cross-examination When asked whether government agents he made statements to trial, agent before the he said that an Federal Investigation Bureau of him during who interviewed robbery week following wrote down such statement. His recollection of occurred at the what interview was not entirely but the trial ruled that he had made clear,2 a statement satisfying requirements of the Jencks Act and ordered produce the United States to it. The Assist- pertinent parts of his are as follows:
“XQ. Now, Witness, you you Mr. when said had a conversation the FBI July 18, 1957, with some time less than a week after did they you say write down what had to to them? you
“The Court: If know.
“The Witness: Yes. “XQ. they you, And did read it back to sir? A. Yes. “XQ. they you essentially you And did ask if that had what just related to them? A. Yes.
“XQ. you yes? And did tell them A. Yes. produced. “The Court: I will order it There is a foundation laid for it. actually questions. I
“The Witness: ... He didn’t ask me through mean, story, got I I he at first told him the and then when questions. asked me a few Well, you?
“The Court: did he read it back to “The Witness: I believe did. your memory
“The Court: best of it? What pretty I “The Witness: am sure he did. your memory you say
“The such as to enable Court: Is you you what was read of what back to was an accurate statement told him?
“The Witness: Yes. you me, trying my
“The If will excuse I am to rack Witness: they happened. think what I think wrote down brain to about what gave said, they over, I I and then think it back to me to read to make right. sign Now, sure that it was And I think I had to it. I am not I Sure. couldn’t remember before —” *5 90 Attorney presenting Government’s
ant States as the witness paper had no such stated that he case only document further that He stated described. not a "statement” prosecution possession Report3 Interview typed a statute, but within and transcribed Toomey prepared Special Agent FBI Assistant. to the at a time unknown the interview after petition- refused to deliver The Assistant inspec- his to the but delivered it ers’ counsel Report for the Court the Interview The District Court sealed it and it is in the record Appeals released Appeals. The Court of here. The full text as follows: Report Investigation Bureau of Interview “Federal Stoughton, Street, Staula, Island “Mr. home address 259 Dominic bank, that he Massachusetts, advised a customer at the victim Canton, County Company in Massa- Trust arrived at Norfolk M., approximately 10:15 A. chusetts, to' transact some business at driving and July a truck 18, 1957. Mr. Staula stated that he was Depot parking located parked in the area it beside Canton he depot He stated that noted and the bank. between railroad parking did he notice nothing this area nor unusual when he entered to the walking parked his vehicle anything from where he unusual bank. to the teller’s window by he went
“It was stated Mr. Staula that standing Kennedy in line at while which is served Mr. Kennedy, heard being upon Mr. he window, but before waited against the wall.’ somebody him state from behind ‘Over observed a man around and “Mr. Staula stated that he looked wearing gray pants, stand- being negro, chino whom he described as lobby holding gun. stated that ing Staula the center of the being up held and at once immediately the bank was realized that side slid them into his deposits of cash and took his which consisted pocket. trouser only the man stand- that he observed
“Mr. Staula went on to state give further lobby and could no ing for an instant in the center of of the bank toward the front description of him he turned because holding gun. standing Staula there another man and observed period of time and for a short that he looked at this man stated p. on 3 continued described him as follows: [Footnote 91.1 *6 question tion. To the court’s whether Government an FBI copied by that was possessed “any statement a statement that any way would reflect Agent which substantially adopted this made and which he witness you by FBI, and “Property of FBI. —This is loaned agency to be distributed outside neither it nor its contents are which loaned. Male.
Sex . Negro. . Race years. Approximately Age 30 . Height 10". 5' . pounds.
Weight . Very
Complexion dark. . Slender.
Build . Round.
Face .
Clothing Dark blue suit. . snap
Blue brim hat. shirt. White man in the he not observe a third “Mr. Staula stated that did bank— type of by he did not know what “It was stated Mr. Staula that but gun by whom he observed carried these two individuals was they automatics. have been 45 caliber believed that could taking wear- a look at the individual “Mr. Staula stated that after previously ordered and observed ing he the wall as the blue suit faced further. these individuals no approxi- to the wall for he stood with his face
“He stated that after him the other ordered mately one of the robbers 10 minutes standing him walk into the vault. either side of people who were on this order of the robbers issued not recall which He stated that does these and observed enter the vault as directed but that he did no further. individuals robbers, the door one of the closed
“Mr. Staula stated that inside people that the locked order to the effect he issued some vault stayed minutes until they there for 5 or 10 and that should not leave Canton, Sergeant Massa- by opened Ruane the vault door was chusetts, Department.” Police 91-952, July 19, Staula, on with Dominic File “Interview # Jr., Toomey, Agent F. Massachusetts, Special John Canton,
bjp.” replied “No, your Honor, Assistant statement,”
as whether “the United question To the further we don’t.” taken *7 shall, that the However, requires judge 343. the statute a witness called defendant, on motion of the after examination, on direct order States has testified States, impeachment purposes, produce for to the United legisla- as the extent, such “statements.” To history clear, makes the Jencks Act “reaffirms” our tive States, in holding 657, Jencks v. United S. that the U. in prosecution defendant on trial a federal criminal entitled, impeachment purposes, to relevant and com- in petent government possession of a statements touching of the Government the events or activities as to at Rep. which the witness has testified S. trial.. Rep. No. 1st 3. And see H. R. 981, Cong., Sess., p. 85th Cong., pp. No. 85th 1st 3-4. The command of Sess., just the statute is thus further the fair and designed to justice, goal administration of criminal of which the judiciary is special guardian. overnight
After an recess trial judge conducted an inquiry jury present without testimony take argument Plainly hear of counsel. this was a enough proper, even a in required, proceeding the circumstances. Determination of the question whether the Government produce government should be ordered to papers could inspection not be made from a mere of the Interview only but with Report, help of extrinsic evidence. The by subsec- governed situation was different from that in which the (c), tion Government admits that a docu- ment in its is a “statement” but submits the possession in paper judge’s inspection for the camera to delete matter which the does not relate Government contends testimony subject to the matter of the witness. Palermo, situation was similar to that where the paper posses- Government also contended that a in its approved pro- sion “statement.” there We cedure of taking presence extrinsic out of the jury judge reaching to assist the his determina- tion production paper. said, whether to order We at 354-355, “It is also the function of the trial decide, light of the circumstances each case, what, if any, may evidence extrinsic to the statement itself must be offered prove the nature of the statement.” required
In this case the aid of extrinsic evidence was following questions bearing peti- to answer the on the tioners’ motions: Toomey
Did write down what him Staula told If so, Toomey give the interview? did Staula the paper “to over, right,” read to make sure that it was and did sign Staula it? *8 Report paper
Was the Interview the Staula copy paper? or a of that In either described, case, judge ruled, the trial the Interview Report would producible be a “statement” (e) (1). under subsection “Statements” under that subsection are not limited to such as the witness has himself set paper. down on They include also a statement written down (cid:127) another which “signed the witness or otherwise adopted approved” or as a statement “made said witness.” True, report the does not bear Staula’s signature and the witness “I testified think I had to sign” original paper. the Hbwever, if the paper was adopted approved by otherwise witness, the 94 Bergman v. See was not essential. signature
his 1; note United States, 933, 935, F. 2d 253 Tomaiolo, F. 2d 413. 411, States v. original or a was not the Report
If the Interview what became of described, copy paper Staula paper? the Report if Interview was any event,
In even the described, Staula copy paper original the Interview approved the had read over Staula report producible the would be Report? In such case although not related (e)(1) under subsection Or was the Interview paper the Staula described. an substantially recital of oral Report verbatim contempora- had recorded agent which the statement neously? this, If the extrinsic evidence established (e)(2). producible would be under subsection States, Palermo United at 351-352. v. Special Agent Toomey
The obvious witness to call was who, parties readily was available. agreed, Defense agent explain counsel called “to suggested be got Report],” he . . . and also where [Interview “Mr. Toomey easily say because what he has done could original writing.” with the Defense counsel were not position appreciate significance Toomey’s also to possible producibility to the the Interview Report itself. with our Consistent admonition Palermo, that “It S.,U. would indeed defeat limit design government papers] defense access to [to may to hold that defense see statements order to argue whether it should be allowed to see them,” neither nor judge permitted inspect Government them to it. From his own inspection, however, aware of significance Toomey’s might evidence judge’s have on the determination whether should order Report Government to turn over the Interview to the *9 defense. The Report Interview resembles the statement Staula described and the judge indicated that he would order its if production it was that statement a copy or of it, or although original not the or a if copy, Staula had approved read and if it, or it was a contemporaneously recorded substantially verbatim recital of oral Staula’s statement. Nevertheless, judge ruled that it was for petitioners to subpoena Toomey as if “their witness” they believed his testimony support would their motions, and that he would not of his own motion Toomey summon to testify, require produce Government to him. We think that ruling was erroneous.
The inquiry being conducted an judge was not adversary proceeding in the nature of a trial controlled governing rules the allocation between parties proof the burdens persuasion. inquiry The was simply a proceeding necessary to aid judge to dis- charge the responsibility upon laid him to enforce the statute. The function of prosecution and defense at the inquiry was not so much a function of their adversary positions in trial proper, as it was a function of their duty to come forward with relevant evidence which might assist the the making of his determination. These considerations standing alone suggest that the em- phasis on the petitioners' produce burden to the evidence misplaced. says statute nothing of burdens of producing evidence. Rather it implies duty in the trial judge affirmatively to administer the statute in such way as can best secure relevant and available evidence necessary to decide between directly opposed interests protected by the statute —the interest of the Government in safeguarding government papers from disclosure, the interest of in having the accused the Government produce “statements” which the requires statute to be produced.
96 that the clearly required this case of circumstances the require or Gov- his own motion Toomey of
judge call did only the Government him. Not produce ernment to knowing the the defense of over advantage have the the but it also had Report the Interview contents of presum- Toomey employ in its and having of advantage from the facts him, readily ascertain ably or could knew, In to the consideration addition about the interview. prose- in a criminal that interest the United States the of justice a that case, it shall win but cution “. . . is not that States, 295 S. Berger . . United U. done, shall .” v. be of fair- considerations rule, based on 78, ordinary the litigant of estab- upon the burden ness, place does not knowledge of his within the peculiarly facts lishing York, H. H. R. v. & United New N. adversary. States the Co., Moreover, petitioners’ note 5. 253, 256, 355 S.U. jade case prima cross-examination of Staula had shown the statement, and, least, their to a of entitlement to come judge required should the Government have that forward with evidence answer case. Cf. Costello, 892, 894-895, F. 13. Supp. States note v. Report under Palermo not, Since the Interview and they and petitioners, could available to the be, made of its way knowing significance thus had no it question judge determine, contents to was to on unfairly require saddled an severe burden them as In subpoena Toomey them to “their witness.” the role in the petitioners’ they groping be dark witness, would in questioning they might by be bound his him, As a called answers. the Government even they court’s have latitude cross- witness, would to which the them. examination circumstances entitled Toomey calling having Instead of the Government call the trial fell him, judge relying into further error upon sought. supply Staula to information he Over objection government counsel that the Interview Report had not been “recorded contemporaneously with of such making oral statement,” the objec- over tion of “If petitioners this man now reads that statement it loses purposes its effect for of impeachment,” directed Staula to read Report the Interview and say whether he was familiar with it. The witness said that he had never the report. seen The judge then *11 asked “. . . Staula is that a substantially verbatim recital of what you Agent Toomey?” told The witness replied, “That’s not up just way written the the is.” story “There are things in there turned around.” It was after this testimony elicited was from Staula that the judge ruled delivery would not order the of Report the Interview to petitioners, the and denied their motion to strike the testimony. witness’ upon testimony
Reliance the of upon the witness based his inspection of the controverted document must be improper any almost circumstances. very ques- being tion determined was whether the defense should have the in cross-examining document for use the witness. Palermo, Under the trial was not allow judge to the de- fense to the “in inspect Report Interview order to argue whether it should be to see” it, allowed since to do so congressional would be the purpose inconsistent with to limit to government Similarly, access papers. Staula should to inspect not have been the allowed Interview Report, necessarily since there inhered in the witness’ inspection paper of the the obvious hazard that his self- might statutory design requiring interest defeat the of the produce to which papers Government are “statements” example, Report within the statute. For the Interview give description states to that Staula was unable of sharp one of the This is in contrast to his posi- robbers. tive of Lester made on identification direct examination. Experienced lawyers readily trial will judges under- report the stand the value of the use of on cross-examina- of deprived were But the petitioners tion of witness. obvi- by the use to make of opportunity it did the witness of self-serving declarations ously agent. accurately what he told record Toomey’s call for Moreover, of failure peti- testimony proper determination foreclosed If the testimony. strike witness’ tioners’ motion to copy original not the Report was Interview destroyed, paper and that described, paper Staula denied statement have petitioners might been Thus, even the statute. they were entitled under a situation Report producible, if itself were the Interview whether subsec- calling have arisen for decision might striking required statute (d) tion argue whether parties of the witness. The noncom- regarded equivalent as the may destruction be produce with under that subsection. pliance an order only contends that destruction The Government be regarded. bad faith should so improper motives or *12 regard to that destruction without petitioners The contend this regarded. However, be the circumstances should so opportunity important affords no to decide this record us (d). not of subsection do question the construction We yet paper existed, destroyed, that such a know its nor can know destruction, the circumstances of we Toomey’s testimony. without the at least of benefit because We conclude that of these errors the conduct of the inquiry petitioners are entitled to a redeter- mination of motion production their for the of Staula’s pretrial statements, and of their motion to strike his testimony. we think However, do not this Court should vacate their conviction trial. and order new The petitioners’ can be a remand to rights fully protected the trial direction a new inquiry court with con- hold sistent with opinion. See United States v. Shotwell Mfg. Co., S. 233. The supple U. District Court will ment final findings the record with new and enter a new if judgment upon conviction the court concludes inquiry new to reaffirm its former This rulings. will preserve to petitioners right appel to seek further late review on the augmented record. On the other hand, if the court concludes that the Government should required have been to deliver the Interview Report other petitioners, statement or that it should have granted their motion to strike Staula’s testimony, court will the judgment vacate of conviction and accord petitioners a new trial. judgment of the Court of Appeals is therefore vacated and the case is remanded to the District Court for further proceedings consistent with this opinion.
It is so ordered. whom Mr. Justice Frankfurter, Clark, Justice Mr. and Mr. Justice Whittaker join, Mr. Justice Harlan dissenting part concurring part. the result in What is prosecution this case? In the course of a violation of the Federal Bank Robbery Act, C. 18 U. S. 2113, Dominic Staula, government § witness, identified defendant Lester one of three men whom he had committing observed the alleged Upon offense. cross- examination, he disclosed on one at that, occasion local police headquarters, he had been interviewed least FBI agents. two He stated that did sign statements, only but signed piece paper “a I saying inwas the bank.” On the of this testimony basis *13 requested defense “the statement of this man” under the Jencks Act, U. S. C. requires § which that the court order the Government produce “any to state- ment ... in possession of the witness the of the United matter as to which the subject relates to the States request denied this judge trial testified.” The witness has “laid no foundation the had ground that defense on the ever read back nothing was “this man said for it” since In ruling. to this was taken exception to him.” No Staula followed, that continuing cross-examination the agents the had recalling that changed his “it” read them, that was he had told written what down “it” was agents the and that he had told him, back to to them.” just . . . had related “essentially what [he] foundation had sua that a judge sponte then held The produce to to the laid for an order Government been produced. the document document, ordered described course of which followed, A colloquy at bench his testi- judge that since earlier explained Staula taken that he place; he had what had mony recollected “it” had been read “pretty sure” that “believed” or was was an accurate that what was read back him; back thought that agents; statement of what he had told the he he had “it” to him to read over and that they gave back he although was not “sure.” Government sign it, only at document stated the bench that counsel inter- “summary the result of the possession their agent's “interpretation FBI represented view” which judge then asked whether the happened.” of what copied by that was possessed “any statement Government in any way an FBI a statement Agent which would reflect substantially adopted that this made and which government replied to which statement,” counsel later your don’t.” A moment “No, Honor, we again asked, possession any “Has the United States its taken FBI Agent *14 the United States Attorney, and the case was adjourned for the day.
The following morning in during a conference held judge’s again chambers the Government asserted that the agent’s report a copy original was not of the notes, that the notes were no longer existence. A dis- long cussion ensued concerning the producibility agent’s report. Defense counsel suggested agent that the FBI (Toomey) be called into explain chambers “to where he got the document,” “say and to he with what has done original writing.” denied, This the but sug- gested that the defendants to subpoena were free agent, or, more simply, could ask the Government to have agent made available for examination. The judge proposed then to ask Staula, presence out of the jury, whether the report a substantially was verbatim recital of he what had if agent, and, told the answer were affirmative, report given would be to defendants impeachment for purposes. opposed Both sides argued move. The Government event the report had not been “recorded contemporaneously with making such oral statement,” and defendants’ objected counsel because the impeachment value of the having would be negated by the witness see the document and himself decide it whether conformed to what had he told the FBI. But Staula was shown the document. He it denied that a “substantially ver- batim recital Agent of what . . told Toomey,” . [he] and the judge thereupon denied the defense access document for purposes impeachment. Thereupon defendants that, moved Act, accordance with the Staula’s entire be stricken because the Gov- produce ernment failed had “the original document.” This motion was denied. presents
The case entirely separate questions two under they the Jencks kept apart. should be Act, First, what statute, under the Jencks procedural requirements, are announces that counsel States when has for which foundation produce cannot documents *15 them and does not possess not been laid because does agent’s FBI Secondly, was the of their existence? know Act? under the report producible available I. upon trial requires judge, 3500 the
Title S. C. § 18 U. States to “order the United by defendant, a the motion in the ... the produce statement of any to to the is relevant possession of the United States” Nothing government the witness. testimony direct that remotely suggests legislative history of the Act Government, with require to Congress’ intent was and notes all records penalizing consequences, preserve to are that connected during taken the countless interviews of the investigation by criminal the various branches with application legislation narrowed Government. States, 657, 353 S. Jencks v. U. of our decision partly by having courts, lower as construed some of the by the district relevancy the material determined Rep. 981, No. 85th prior production. to its S. judge p. 1st 2. Cong., Sess., “in posses- the words
Petitioners’ contention meaning “possession at interpreted sion of” must as be rejected. Congress be present time” must prior whereby game a of chance did not intend to initiate surely depend is made to the admission of witness’ O’Mahoney, care. accuracy clerk’s Senator upon file illustrating that his measure bill, of the sponsor basis of the Jencks case, interpreted the essential approved “had only Jencks to where the Government apply pertinent to a witness’ in its files a statement” same time Rep. also S. No. testimony. Cong. Rec. 10120. See 981, 85th 1st Cong., Sess., p. 5; Rep. H. R. No. 85th 1st Cong., p. 5.1 Sess., government
Here told counsel the court that he did possess not and did not know the whereabouts documents which Staula had today described. The Court upon holds that it fell the district to conduct investigation further the disposition docu- ments, it whereby his call duty becomes and question the FBI who agent signed subsequent summary. Defendants did not question the truth or accuracy of the responses Attorney of the United States as to the non- existence original repre- notes. Defendants were sented competent lawyers two who were alert protect their clients’ all through interest trial available procedures and tactics. surely It of a duty *16 district a judge investigate response by to is an one who officer of the as of court well as the on the United States assumption that he has or intentionally irresponsibly responsibility violated his to the court and the Govern- in conducting ment in the Government’s case a manner consistent legal professional with basic ethics and care. claim duty by
How does the court’s a regarding defense under the Jencks statute differ from other claim for a production the told that of document? We are because Agent Toomey readily it available, devolved on the judge instead on the light of defendants to seek whatever on could be thrown the matter. Is it of duty now the the district do all that a judge competent to defense counsel do, or would a trial choose, would as matter of judgment, procedure not to do? now suggested places The the in a position voluntary the of defender for defendants opinion implies
1 The Court’s the is defendant entitled p. possess, ante, statements which the Government does not 98. now plainly speaks only The Act to a “statement ... possession
the of the United States.” only This seems already adequately represented. counsel here it well be that questionable may more since disposed had of documents been were satisfied that duty is of Court in a fide manner. It not bona independent hypothetical situations which to invent have revealed unex- by judge might action the district a hint— suggestion, facts. There was no pected argument or court, below, upon the trial either before or non- representation here —that Government’s piece was a fide, the documents was not bona existence of upon bringing as a fraud the court of chicane and such honor, dignity its protection the court’s into action call professional inadequacy or manifestation of safeguarding action. court’s II. produci- issue the case is presented other put
bility FBI which had been into agent’s (e) of the Jencks possession of court. Subsection papers possession defines the Government’s Act thus subject production: that are made “(1) a written statement said witness adopted approved by or signed otherwise or or him; mechanical, electrical,
“(2) stenographic, other transcription recording, thereof, a sub- *17 an oral made stantially verbatim recital of statement by agent to an said witness Government contemporaneously making recorded with the such of oral statement.” differentiation plain between the two clauses is
that the former relates to a witness, statements written encompasses while the latter his oral statements recorded transcribed another. As to the statements that paper, Congress had himself set down on witness approval his of signature desired that or some other form authenticity. approval be shown to assure The required quiet any would an also doubts the witness had adequate opportunity to scrutinize for verification prepared. appropriate document which he had These are for a basis safeguards the use of these documents as for impeaching witness’ on the stand. As to oral statements, prescribes the statute that their content substantially be “a verbatim recital” of the witness’ words, contemporaneously. “Clearly provision recorded this production allows the of mechanical stenographic or recordings of oral statements, even later tran- though States, Palermo scribed.” v. 343, United 360 U. S. purpose 351-352. Producibility, impeachment, a up person by statement drawn the third an agent requires that contempora- whole oral statement be neously recorded. standard, Under summarization by an agent testimony by selective portions of fall scope would within the of the Act. “[B]eyond mechanical stenographic statements ... very applied” restrictive standard to be in defining what is a statutory “statement” under the Palermo language. States, v. supra, United at 360. Under subsection (2), it makes no difference agent whether these summaries are signed approved by witness; “the legislation designed danger to eliminate the of distortion and mis- representation merely inherent selects portions, albeit from a accurately, lengthy oral recital.” Palermo States, supra, v. at 352. the bill orig- As inally came out of the House Judiciary Committee, 103 Cong. 16125, Rec. such summaries approved by when subject witness would have been to production. H. R. Rep. No. 85th Cong., Sess., p. 1st However, 6. subsequent revision of bill as finally enacted makes *18 106 orally to given a witness of
clear that those statements “substantially of standard must meet the Government purposes be for produced in order to verbatim” Palermo v. United B, impeachment.2 Appendix See States, supra, at 358-360. Palermo, holding approved judge’s
In of the district we questionable' in camera determine whether proceedings S., 360 U. statutory documents “statements.” constituted that explicitness no to establish at 354. It needed be made extrinsic “substantially verbatim” test was to the docu- by asking not witness himself whether proof, he had in to what question substantially ment conformed that agents. agree with the Court told the federal We indulged trial procedure which the might deny accuracy erroneous. The witness if impeachment; pro- to avoid even document order its potentiality the document loses much of duced, if its impeachment already has examined contents. hearing out of judge’s submitting,
But the trial error for Staula’s determina- jury, Report Interview if its warrant reversal accuracy tion would not statutory a proves itself, face, on its be report Palermo, 600-word In the document was “statement.” we held was summary conference, 3%-hour virtually transcript. S., 360 U. verbatim clearly not Report n. 12. The Interview here comes is But silent slightly over 500 words. the record Nor does it disclose to the duration of the interview. 2 that, signed suggests Staula opinion as the had Insofar Court’s conclusively producible, Report, it have been the Interview would disagree. statutory language, have been it still would we Under substantially necessary verbatim to find that was “a (e) (1) agents. recital” of that which Staula told Section inapplicable.
whether the was contemporaneously interview recorded,3 any recording how such was transcribed. However may doubtful it seem, may it be the fact that the inter- very brief, view was not more than a minutes, few and entirety that the as an faithfully conversation was re- and an all corded constituted accurate account of that transpired.
It responsibility defendants, is the for as counsel has elucidated, been to ascertainment of the correct- pursue ness of the Government’s claim that documents which are for production demandable under the Jencks Act are no longer existence, reprehensible and for no charge- reason able to the That is an Government. issue like other issue of appropriate evidentiary demand. It not is for the question produc- court that the foundation for here, the existence wanting, document —is if tion — for question counsel defendants do not the Government’s explanation non-production. for veryA different issue is presented in determining legal the of a significance document like FBI report Act, under the Jencks which is produced inspection for the confidential court responsi- and not shown to the defense. Here the bility resolving with it court, issue rests is court that pursue appropriate must means for ascertaining judgment. the facts relevant easily
The district probed should could have these vital matters, ascertainment of the Jencks Act conflicting testimony Aside from agent Staula's took notes.
During proceedings chambers, repeatedly the Government report asserted that the was not in existence the time Staula was Assuming true, irrelevant; interviewed. question this to be it is contemporaneous recording whether there was a from which the transcription States, was later made. Palermo v. supra, See at 351-352. counsel, or, by interrogating report,
quality circum- Agent Toomey on the examining suggests, Court this record we cannot of the interview.4 Since on stances producible under the report patently say that the to the to remand the matter we have no recourse but Act, meets for determination whether Court District (e)(2). subsection requirements *20 thing very Calling Toomey purpose is a different Agent for this him to controvert requiring the in order from call were in other notes documents assertion that no Government’s with. defense to deal possession. That was for the their in its notes were possession States [has] Agent FBI at the time by the down “I not have answered, Assistant do interviewed,” the they I whether do know my possession them ever existed.” gov- to such Act defendants The Jencks limits access fit Act’s definition of “statements” papers ernment to which the wit- subject matter as relate to the States, 360 S. Palermo U. testified, ness has v.
Notes
notes were down time counsel this witness was interviewed?” Government I my possession “I do have them in and do answered they The judge not know whether ever existed.” then agent’s FBI asked and received the referred