*1 every alleged error filed or on motion decision proceedings. If the Herring limited the broad discretion not so judge controlling the conduct
judicial proceedings would be eviscerated.
However, de rest the we need not Appellant fail ground. here on that
cision request at argument
ed to the motion suppression and instead allow hearing juncture adjourn
ed court to was not objection. hearing
without appellant’s legal arguments
lengthy and fully in his motion presented written In view accompanying memorandum. appellant now the nature of the claim trial,
makes and his failure to raise argu oral absence of
we conclude all, motion, prejudicial
ment on the Super. Ct. plain error.
does constitute States, D.C. Hill 52(b);
Cr.R. Bunter v.
App.,
(1971);
Affirmed. Jr., Appellant, MOORE,
Calvin STATES, Appellee.
UNITED JOHNSON, Appellant,
Christopher STATES, Appellee.
UNITED 8069, 8080.
Nos. Appeals. Court of Columbia
District of
Argued Nov. 3, 1976.
Decided Feb.
D.C., by court, appellant appointed for adopted brief in Moore, No. 8080. Gilman, Atty., Asst. Nicholas U. S. C., Washington, with whom D. Earl Sil- J. bert, Atty., Terry S. A. U. John John Hume, Attys., P. U. Washington, Asst. S. brief, C., appellee. D. for were on KELLY, Before FICKLING HAR- RIS, Judges. Associate KELLY, Judge: Associate Appellant Moore was convicted jury of robbery, armed D.C.Code §§ -3202, 22-2901, and was sentenced to three years imprisonment. to ten Appellant was convicted robbery, D.C. Johnson 22-2901, Code for which he was § imprisoned eighteen for months to ten years. The victim of the robbery, James Gibbs, E. appellants identified seventeen days event in after the a chance street en- counter near the courthouse. This identi- fication was the linking ap- evidence pellants proceeds with the offense. No robbery recovered, ho usable fin- gerprints were taken from Gibbs’ car appellant attempted had Johnson during robbery, start and no other evi- appellants’ participation dence of presented. crime appeal The issue on judge the trial refusing' whether erred in impose Act, sanctions of the Jencks U.S.C. 3500 (1970), Gibbs’ § failed, testimony when upon produce police request, *3 robbers;2 description of the Gibbs’ down Act, be records issue must the the misplaced, and that his notes had been meaning “statements” within the of him, things, among other had told Gibbs wit Act.4 And when statement of a five inch- five feet that both robbers were' oral, transcription the state ness is a completed Nance es tall.3 After Officer “substantially ment must be verbatim” counsel re- testimony, defense his direct The tran contemporaneously”. “recorded the notes con- quested production continuous, scription narrative be a must description rob- of the taining witness’ nota recording rather than mere selective produce to government failed bers. The excerpts statements.5 from oral tions or to strike counsel moved the notes and incorporate substantially Documents sum- testimony. complainant’s The a of oral statements of notes or records not marily held that the notes satisfy production require may witness material, of this-court’s but when reminded reliabil depending on the ments of the Act States, D.C. in Banks v. United decision ab reporting process and the ity of the the Po- (1973), and of A.2d 256 App., 305 defendant.6 prejudice to the sence of requiring the Regulations Department lice Depart- The District of Columbia Police descriptive taken preservation notes promulgated ment General Order Series of the scene, inquiry was made a brief 601, 26, 1972, 2, May No. effective amend- developed the notes officer which 1, 1972, requires the September ed neverthe- The court found. could preservation prospective in- without motion strike denied the less specifically that “this witnesses and states ruling was that dicating whether notes includes or that material were not *4 question notes in here related to a crucial when he looked for the notes for issue and they might have to served trial, he was to find them. unable testimony discredit the complaining Thus, regard the officer’s to actions As Bundy, witness. in United States v. preservation negli- of the notes were 191, 1266, 193, 153 U.S.App.D.C. 472 F.2d gent. (1972) J., 1268 (Leventhal, concurring), deciding Before whether sanctions might permitted the notes have the defense imposed, however, should have been it is subsequent to undercut identifications necessary to know notes were whether the appellants by showing ap that their actual Act statements and whether pearances complainant’s Jencks differed from the incorporated substance of the notes was description. initial theAs court there stat partic- other documents. notes in a Police ed, description initial of an assailant “[t]he potentially ular regarded case been eyewitness the victim or is other crucial Hardy statements. v. United evidence, and *5 night way on to work the ed street his on Printing shift at the Office. Government majority’s missing The elevation of the parked him as his approached Two men he rough notes to a level warrants re- which trouble, get to Sensing he hastened car. is, opinion, mand my contrary in to both area his had reached the out of car. He Further, law the few reason. when left of his front wheel when one analyzed, the relevant facts of record are him, pointed gun men a cocked two present remand order is a rather seen hammer, buddy, you right, “All and said: striking example futility. in exercise right it there.” The assailant can hold Accordingly, opinion although the majority keys, and tossed them manded car appears innocuous, respectfully somewhat I into companion companion. got The his importance dissent. of the Because of sought un- car, and minutes for several underlying presented, in I so some issue do successfully (There the car. to start detail. key keys on the victim’s large number of time, with the man ring.) During I The of the victim. in view gun was clear begin by recognizing the fundamental wallet, contain- took the victim’s assailant principle unifying objective that the of our repeatedly gunman The over ing $90. system adjudicatory is the determination finally street, up down looked See, e.g., Gregory truth. of the out companion get his called 140, 143, U.S.App.D.C. left; vic- then The assailants two car. (1966). majority correctly ob- retreated closely they as them tim watched serves that the Act seeks to serve from scene. objective “by im- facilitating [the] victim’s peachment about government’s gunman witnesses.” was As willingness However, shorter. (At in their his 19). height; companion complainant noticed provisions apply departed, of that statute to two manner- pair peculiar with investigatory police *6 two men inter- Robbery Squad detectives. The that the shall determine discretion by the com- be again once that a mistrial justice require were identified ests of Fifth, as later left the courthouse. plainant 3500(d). declared.” U.S.C. § arrested, us term They and now before are defines the narrowly the statute appellants. provides: (e) as Subsection “statement”.
II “statement”, as used in The term . this section in relation to is, course, mystery as to the There of no States, by the United witness called as meaning of we refer to intent what or means— Act, (1970). 18 U.S.C. § a by in 1957 as Congress enacted It was Supreme by (1) Court’s a written prompt statement made said reaction States, signed adopted 353 U. witness or opinion and otherwise in Jencks United him; approved by or L.Ed.2d S. Supreme Court As stated (2) mechanical, stenographic, a elec- States, in Palermo U.S. trical, recording, transcrip- other or a or 1217, 1226, 3 L.Ed.2d
354, 79 S.Ct.
)
thereof,
substantially
tion
is
ver-
:
(1959
batim
made
recital of an oral statement
limiting
contempo-
is
major
The Act’s
concern with
said
recorded
govern-
raneously
making
oral
regulating
defense access
with the
such
of
deny
statement;
papers,
designed
it
is
or
ment
complete
hence
of
out the aid
(3)
statement,
taken
re-
however
or
memory
are
agent,
corded,
thereof,
rest on
transcription
any,
or a
course,
Neither,
of
produced.
grand
be
jury;
made
to a
said witness
in-
agent’s
contain the
statements which
theoretically
it
is
acknowledge
that
impressions.
terpretations or
[Footnotes
po-
notes
rough
conceivable that the
of a
omitted; emphasis added.]
crime,
officer,
at the scene of a
lice
taken
might
constituting
of
reach the level
later,
years
Supreme
Four
Court
as
It
3500(e).
“statement”
defined
§
Maryland,
cided
Brady v.
373 U.S.
however,
recognized,
ele-
must be
that the
(1963). The
23 * ** suppression. hold Hence we It remained for the United Court States discovery has request that before a Appeals for the District of Columbia op- made, duty disclosure homogenization to seek to force a Circuit preservation. Only duty erative concepts as of the two —the Jencks during carefully preserved if evidence is analytically are not Brady —which investigation in will dis- early stages valid That occurred intermixture. possible U.S.App.D.C. closure be later. 142 Bryant, United States v. 132, was issued (1971), Following a discussion of United States date of days two to the effective 528, Augenblick, in 1971) reorganization (February (1969), 21 L.Ed.2d Su- District of Columbia. M.A.P. Cf. preme both held that the loss of Court D.C.App., 285 A.2d Ryan, tape recordings of inter- notes and recording con tape Bryant dealt with did not views with witnesses in a narcot between defendants versations process, constitute a denial of due officer. ics case and an undercover U.S.App.D.C. at (142 court stated speculated (probably correct Bryant court 652): 439F.2d at re ly, not) that “the conversations perhaps absolutely crucial tape Accordingly,
corded on the were we hold that sanctions for guilt inno question appellants’ nondisclosure based on loss of evidence at Id., U.S.App.D.C. will unless the cence.” be invoked the future pre at pro- at Defense efforts Government can show that it has fruitless, it discovery tape attempted mulgated, enforced acknowledged sys- good rigorous The court faith having been lost. to follow F.2d at 650): (id. procedures designed preserve tematic gathered all discoverable evidence however, cases, we To decide these investigation. course of criminal Agent tape need not conclude [Footnote omitted.] Pope’s room conversations motel While court labeled fell within appellants . . . It was “holding”, clearly it was re- not. Act disclosure
scope of the Jencks pure dicta, exclusively advisory which was over- well as within quirement—as prospective applicability. Fur- requirements of disclosure lapping ther, infra, basi- as discussed it constituted process clause and due [Fed.R.Crim. cally by the court to an unwarranted effort apply latter Rules 16. Since P.] supervisory authority exercise a form of issue pretrial stage, tape agencies. over law enforcement reached have been would not disclosed had been available pendu- Bryant, Since the issuance of time. put swung lum which it in motion has back homogeniza- attempted came the Then forth in the circuit court. at 140- (id. referred U.S.App.D.C. I have Perry,
tion to which 650-51): F.2d at F.2d 1057 the court dealt with grand testimony, jury loss of a witness’ may that evidence Technically, it pursu- which was a Act statement *8 Jencks is not be found cannot ant to The court 3500(e)(3). 18 U.S.C. § And, of “possession.” Government’s rejected an automatic of wit- does course, that which Government testimony ness’ trial of the lost because line But disclose. not have cannot grand jury testimony, saying part (id. in at facile, clearly too reasoning is far of 1063): F.2d at 471 Brady, language self-defeating. The no proper perspective, Act includes Viewed in its Rule 16 and Jencks judicial truth, possession process search not timing of is a reference 24 that, held when Supreme has Court The adversary game, and therefore the indicates introduced the evidence compelling Act is not mandate
Jencks the trial investigating taken destroyed notes judge to strike ... wit- they “rough,” informal or were previously ness’ 'officials made when “substantially ver statement, reason, be considered cannot irrespective of the meaning of within produced by- batim” cannot be the Government. Augen hand, the Act. On the other does See Government 348, 354-55, blick, 393 necessarily exonerate itself from the (1969). . . . penalty [Foot of the statute so- L.Ed.2d by pleading Instead, note “good called faith.” omitted.] judge’s effort be to see that the de- must effect is United same To the previous fendant access to state- 36, 43, U.S.App.D.C. Scriber, 163 ments of a witness to the fullest extent stat- court (1974), which possible statute, under the terms rough, inves- held that “it has been ed that in order to jus- further the interests of at police officers tigative taken notes tice in the search for truth. Whether ‘substantially crime are the scene testimony of a witness is stricken coverage statements within verbatim’ , however, is in the discretion Act.” omitted.] [Footnote Jencks trial judge eliminating the wit- ness’ testimony would restrict search ex- potential between the The conflict for truth rather than assist it in in- re- pansive Bryant and more dicta of stant and future cases. interpretations strictive court Perry (id. further stated Hines expressed in and Scriber 471 F.2d at “In order exclude 1067): circuit further has manifested itself testimony, showing there should be a of ei- opinions. over Slightly court’s more recent ther negligence purposeful destruction Ma- ago, two months in United States accompanied by either bad motive or bad son, stated that court one division of judgment.” See also United States v. re- intended to that the “was Carpenter, U.S.App.D.C. 358, 510 F.2d production to strict the indiscriminate (1975) (affirming a conviction in a prepared fendants of FBI summaries case in which a preliminary hearing tran- agents potential after wit- interviews with script lost). weeks nesses.” 523 F.2d 1129. Two later, another decided United division the circuit case in which first D.C.Cir., Harrison, States v. their on- dealt with officers’ Harrison, the convictions while (1975). notes was investigative the-scene affirmed, appeal court utilized were 249, 455 Hines, U.S.App.D.C. States v. type prospective it had the same dicta as denied, 406 U.S. cert. F.2d 1317 Bryant. The court declared L.Ed.2d 675 potentially are agents notes of FBI rough originals were not Although the pre- be must henceforth discoverable notes available, of the lost the substance sanctions. possible pain of under served appropriate incorporated in the had been specific. forms, given may police report which were concern now My sig- involved courts have appellate the case (cid:127)Unquestionably, the defense. While supervisory au- degree inherent occurred events which had nificant rulings decision, rejected whose thority circuit court over the trial courts However, they obliged the lost to review. appellants’ arguments over authority producible, theory, supervisory under no
25 dicta; e., exculpatory the retention Bryant might and Harrison terial —i. contain in- potentially material ob- formation—to which discoverable a defendant would However, quarrel with be viously is desirable. I entitled to What trial. Bryant in and Harrison way Bryant fallaciously proceed is the which and Harrison rough preservation unspoken assumption seek to enforce the on the rough that lost notes, namely, threatening presumed exculpatory, to strike tes- notes must be to be timony if note is The extension of lost. hence their mere in and of itself give Act sanction to an actual should to rise the sanction of in longer Act statement no a witness’ testimony. There no more justification government’s possession a' exculpatory would be serious ascribing for an enough step appellate quality no one which to lost (and notes than there would yet apply has to such taken); presuming eyewitness that an rough sanction in the in case of lost notes crime who dies before trial would have an upon amalgamation given reliance exculpato- which would be ry wholly Act and Brady Indeed, would be un- to a defendant. reason should Jencks warranted, persuade Brady for neither the Act nor us contrary, rough anything piece to do with lost of notes invariably provide almost at least a paper.1 partial basis for report or FBI is, course,
It
forms,
regularly
that an officer’s
true
are made available
might
rough
Brady
notes
constitute
ma-
degree
defense. Absent
some
Prieto,
(5th
1974)
While the voluminous
;
case law in this area
proof, am tion rough el, description giv- plications particularly loss of officer’s in the since utilized en was never notes. [the victim] at all. police purpose for properly has been today, this court Until * * * any pos- satisfied that areWe expansive Bryant. dicta of wary of the sible error was harmless. decisions consequence, I believe our As States, D.C.App., In Johnson United a course on the have demonstrated department store’s 322 (1974), A.2d 590 and more consistent both more special prepared a PD Form police officer by the circuit logical than that reflected Metropolitan A following 163 an arrest. progeny. It is true that we court’s Bryant Department officer then observed Police deference, Bryant some have accorded as no information that the form contained promulgation of the have we welcomed had to the value of the items which part police general which calls order prepared, and A new was stolen. form rough preservation officer’s of “an away. De original apparently thrown was perpetrator description *11 basis see no valid importantly, I view, More her. In our the notes did not con- a new amounts creation of what stitute a for the purview “statement” within the any legal exclusionary rule. Few—if and, of 18 U.S.C.A. 3500(e)(1) (2) or — § spirited debate therefore, concepts have stirred more no Act sanction was Jencks has principle which exclusionary warranted. than described as to unconstitu developed response as a “rough” “mostly been illegible”, nei- This seizures. ther searches and tional adoption with from the rule’s true been of federal officials a reference to actions (1) by written statement made said 383, States, 232 U.S. Weeks v. signed adopted witness or otherwise through 341, (1914), approved him; 58 L.Ed. by or S.Ct. [nor] Mapp action application state its mechanical, stenographic, a electri- (2) 1684, 643, 6 L.Ed. Ohio, U.S. S.Ct. cal, recording, transcription or other or a continuing (1961), and 2d 1081 thereof, substantially which is a verbatim See, opinions present. e.g., the various recital of an oral statement said made 403 U.S. Hampshire, v. New Coolidge witness to agent of the Government (1971). L.Ed.2d 91 S.Ct. contemporaneously recorded debate, it entering into that Without now making such oral statement. is rule exclusionary is manifest grounded Amendment to on the Fourth R.D.J., Finally, in D.C.App., In re Bryant What Constitution. rejected A.2d 301 we the conten- sought unquestionably have Harrison required pro- tion Act Jencks transplant (and se old most is to to do police a duction of officer’s a con- notes of crossing remedy ground new vere) into complainant, pointing versation a out: inherently doctrines distinct “There was no evidence that the officer justi is no Brady. Act and There has ever detailed written notes a exclu new fication for creation complainant telephone. what said on the rule, respect to sionary particularly with ...” Id. at 303. reality insignificant rather is in what Thus, problem police officer’s logically this has moved away acceptance basis certainly from an is no Bryant rough notes. There Constitution; police in cases dicta in which a such a rule in the investigatory prior specifically Supreme notes are lost to trial. held Court has are, course, questions for the not of constitu There sound reasons are gone clearly Augen- direction which so have States v. we tional dimension. United case. majority’s blick, decision in this 528. supra, 393 experiences jurisdiction In a tens a rule in the is no basis for such There statutory every year, itself; thousands of criminal cases definition is rough manifestly loss of some notes inevitable is not satisfied of a “statement” spite (based best intentions efforts. notes by an officer’s on-the-scene demanding, duties of officer hectic typically is interview upon what hectic, dangerous. frequently crime), often too or with victim other expect totally It the infal- its unrealistic is limited applicability and the Act’s rough *12 mis responsibility developing for relevant was Brady Act and of the Jencks guilt of facts on which a determination Nobles, 422 placed. In United States or innocence can be made. 45 L.Ed.2d 95 S.Ct. unanimously Supreme the Court A.B.H., supra, recently As re we In solely applicable to the 16 is held that Rule rejection completed impliedly our proceeding, a pretrial stages of criminal analytically Bryant dicta. To defective Act does the by while its own terms Jencks provides opportunity an day’s case us play after a witness into until not come rejection unmistakably make that clear. testified.5 of unique hold the sanction I would inapplicable investigating States, noted Jones su- We long too we lost For officer’s notes. pra note 2 that: unwillingness to camouflaged ac our Considering the thou- fact that of the by euphemisms, cept use of Bryant prosecutions sands of criminal in the Su- “any possible such as conclusion perior promulgation since Court of (see, e.g., Hardy v. error was harmless” Department the Police Order General time supra 871). only very a small number involved loss to rid ourselves of the has come albatross. police of a we are satis- Depart- Metropolitan fied Police pre-
ment has made “earnest efforts”
serve crucial Ill material. Nonetheless, epitomiz- us obviously such cases factual situation before some difficulty inevitably major will fol- with the have arisen and others es the inherent dicta, contemplated puppy’s by strikes me as ef- low. It akin to result tail case witness— forts to catch its the courts contin- this is a one for necessarily robbery. If ually to be involved in what the victim of armed imposition speculation as of should of mere to the contents lost lost notes call for non-“statements,” here, seriously would be and to consider a sanction the result noth- of presumably suppression truthful testi- less than a ing total mony appellants.6 government’s against as retribution for an officer’s loss of evidence all, outcome, submit, Supreme his After Court would shock a notes. as the Such I Nobles, supra, infinitely stated in more than United States v. reasonable conscience slip at 2166: fact lost would the that an officer prosecution, Nobles, Supreme a bar dealt with then such notes in- Court evitably target disap- question would become a access to the pearance through taken circumstances such as fav- which were statements witnesses — oritism, Alternatively, investigators. corruption, sustained or theft. The Court defense prosecution guilty go right if a officer to review sees defendant merely piece misplaced free counsel because of used defense requires paper, imagination impeaching government wit- little to antici- basis for as the pate simply the officer will refrain from nesses. taking *13 facts, parently limited made a note of those opinion majority the includes fol- and then broadcast a lookout for such the basis of lowing statement: “Because he subjects.7 that The officer testified is ruling the court’s uncertain we remand descriptions. get then tried to more detailed ques- full on hearing the for a the record height weight He stated: “But on a and (At tion.” It that fur- concludes 18.) communicating. difficulty we had a little necessary proceedings ther are “to deter- I, definitely, give He me and couldn’t I— mine Nance’s notes whether Officer consti- wanting what I was numbers. was producible tute under the a statement * * * kept asking I him how tall were correspondence Jencks they weight, and what their even lookout to the information transcribed ” 8 tually said, he The officer ‘Five-five.’ (At I 20.) Nance.”11 fear Officer prepared later relying PD Form at those statements will leave trial court the part notes; least in on his in it he said they at much sea on remand as do me that both of the robbers were five-five.9 Certainly not re- now. the trial court is The officer’s quired limited which mani give evidentiary its reasons for festly could not have fact, constituted “state no Irrespective rulings. of that ment” as Act, defined the imagination later stretch of the miss- the could Jencks majority’s robbery 7. The treatment of the radio run victim of the and Officer I Nance. puzzling. trial, “investigated” is At the Assistant fail to see how it could be on Attorney record, already stated: “For the remand than it more been. anything they certainly that is broadcast appears 10. The motion to have part been directed transcribed radio I run. testimony although Nance, to the happy of Officer it part will be to make it of the record.” should have been directed at the Experienced defense counsel made no further complaining Hardy the States, witness. See request as to radio run. The record con- am majority’s 869-70. I confident support tains no for the properly. the trial court considered (At it produced.” radio run “was not 20.) course, is, wholly 11. It artificial to direct -finding “pro- *14 material, might giving are Jencks note warrant where however, production missing instruction. the rule under a variation supra exception if to an the substance Jones C f. indicated, incorporated is no in other docu- As I have there basis of the notes was missing (At 19.) existing assuming reeord which were taken in im- interview following mediately robbery and con- description tained witness’ initial of the robbers.1 Washington, D. Weisberg, Complainant H. Gibbs testified at Frederick court, appellant robbers; C., appointed that there were two gun Washington, him, Mundy, plane” man was “on same E. Johnson. James provides: 3500(b) subject § U.S.C. to the matter as to which the witness called After testified. If entire contents examination, on direct testified has shall, such statement relate to the matter defendant, witness, of the order on motion the court shall (as produce any directly order delivered it to be to the defend- pos- defined) the witness in the ant hereinafter for his examination and use. States which relates of the United session remand the record we ing is uncertain nine inches was about five feet question. on the hearing full companion only came his and that height, up shoulder. Officer gunman’s Nance, report who took D. James the apply For the had written robbery, that he testified discovery right under for the exist
Notes
giv- scription perpetrator of a crime wit- produce the inability to government’s by prior to the ar- en the victim or witness not re- to its loss did due ness’ statement suspect.”7 materials are rest of a The sanctions under quire imposition of court’s rul- of the the basis Because Act. of n whomhe had (1) by Moore, a a 2. written. statement said wit- Gibbs described made having signed adopted ap- minutes, light good a or for some ness proved by otherwise or view height being ; complexion, his him about brown having (2) stenographic, electrical, (5'9"), wearing mechanical, a a bush haircut recording, sharp Johnson, transcription or he saw or other a there- features. whom large of, substantially profile, and his had a bush haircut which is verbatim recital witness, by appearance reminded Gibbs of of an oral statement made said and mannerisms they departed making scene, contemporaneously Moore recorded with the mouse. As long strides, statement; his hands in with of such oral or with walked (3) statement, pockets John- shoulders hunched. however taken or record- his and his hop- ed, transcription thereof, any, alternatively with a and ran walked son keep up grand jury. ping in order with said witness movement attracted movements These same Moore. States, appellants v. sev- 5. Palermo 360 U.S. when he saw attention Gibbs’ 351-52, 79 3 L.Ed.2d later. weeks eral States, supra 258-59; 6. making Banks v. United denied such a state- 3. at first Gibbs officer, might Bundy, U.S.App.D.C. but later said he ment really 191, 194, (1972) (Leven could not remember. so but have done J., thal, concurring). 3500(e) provides: § 4. 18 U.S.C. “statement”, Three cases in this as used subsections court have stressed term comply Hardy (d) (b), (c), need to in relation with this order. of this section States, D.C.App., the United 316 A.2d called 11.974) (Gallagher, J., ; Savage concurring) means— rough, investiga has been held jackets be maintained in investigative case [I]t at the officers kept in taken secure until tive notes file cabinets “substantially are not disposed case which scene of a crime has been relate the cover three-year within of or verbatim” statements period if no criminal Act. United States proceedings age gov- Thus the initiated. F. has, case, Scriber, U.S.App.D.C. ernment on the record obligation setting up proper pro- (1974).11 met 2d preservation cedures for of discoverable production of on-the-scene material.8 But Nance did Officer notes is in keeping purpose prescribed procedure. comply He Act, to aid the search truth facili although testified that he could not remem- tating impeachment government’s happened ber what was his witnesses.12 There is no doubt that practice put in his material locker
Jencks
taken of that de
867,
States, D.C.App.,
A.2d
870 & 3
316
n.
scription
kept
produced.”
should be
(1974).
In other cases these notes have
192,
at
Id.
1267.
F.2d at
thought
to fall
outside
Jencks
“general”,
because
Even
“rough”,9
where
statements are
“sketchy”,
material, however,
“hasty”,10 and
pro
thus
the rule of
and/or
verbatim
duction under
is
statements of the witness.
In a
the Act
ex
ception if
eyewitness’ descriptions
recent case
includ-
substance
the notes was
incorporated in
jacket
ed in a lost
other
court-work
charac-
documents. Officer
Nance
falling
category
everything
dictum as
testified that
he had
terized
written down was
original
when the court
broadcast on the
stated:
States, D.C.App.,
880,
Compare
dissenting
v.
Judge
313 A.2d
11.
view
(1974) ;
States,
Hines, supra
v.
883-84
Banks
su
Bazelon in United
note
pra
10,
U.S.App.D.C.
268,
at 259.
at
455 F.2d
1336:
“[I]t would seem
reasonable that
Bryant,
U.S.App.D.C.
8. United States v.
description
specific words of
would be written
132,
642,
remand,
439 F.2d
145 U.S.
aff’d
roughest
even
down
course of
note-
App.D.C. 259,
(1971).
offi- of a that the walked strides, long cer, my man took colleagues govern- The taller minimize the isms. hearing investigated re- also be 13. The officer also transferred information given by complainant to him onto a PD Form mand. not of but it form is record should That which do to those statements pockets in his such access hands his with his requirements. satisfy forward. The shorter shoulders hunched [its] walking him, at times man beside moved Malcolm, D.C.App., See run, into a breaking times and at (1975); A.2d 333-34 movement, keep in his efforts to hopping Mason, D.C.Cir., 523 F.2d States up with the taller man. minutes, the victim en- Within few has certain characteristics The statute They police officer. toured countered First, provides it unambiguous. car, in a were unable to the area scout but government witness that no statement of later, days find two men. Several testi- the witness has until is discoverable complainant police pho- reviewed scores Second, 3500(a) (1970). fied. U.S.C. § recognize any as tographs, but he did not “statement or re- speaks specifically of a being who had robbed those of men port possession the United him. which was Government Ibid, Third, crime, added). days the vic- .” (emphasis after . Seventeen area, request (e.g., preparing go so tim was the same if the should the trial began security), home work. As he drive from for reasons question in space, he two men parking inspect from his saw the document shall him, exactly part all walking with whether coming towards determine camera to clearly so producible those which were the defense. 18 U.S.C. characteristics it is § pro- memory. Fourth, As came directs 3500(c). in his clos- if the court etched er, recognized ex- studied their faces and he of a statement duction gov- had robbed positively producible, them men who found amined and car, comply him. followed them his not to He ernment chooses Building order, them A of the Su- strike from enter “the court shall watched nearby witness, perior Court. He then went to record headquarters, the aid of proceed and enlisted the court unless the trial shall
vation such Appeals case from the Court of came depend degree would significance Maryland, nothing do hence had upon circumstances which a combination of Act. Two men were the Jencks rarely occur real life. ever—would —if murder, tried charged they were but Supreme first which the In the case in trial, his Brady’s separately. Prior Act, interpreted Palermo v. Court prosecutor for certain counsel asked explained supra, the Court extrajudicial had been statements which why definition restrictive companion in by Brady’s crime. adopted (360 term “statement” was them, companion that one of confessed 352-53, 1224): 79 S.Ct. at together, men had while the two acted the ac- he, Brady, was who had done It clear Congress was concerned particular killing. tual That those which could prosecutor. The Court withheld properly be called the own witness’ depriva- Appeals been a held that words should made available to the be case process, and remanded the tion due impeachment. purposes defense question punishment for a retrial on important It was the statement guilt). issue of (but not on the fairly fully could be deemed reflect and without what had been distortion Supreme Court affirmed. government agent. said to the Distor- part (Id. stated in Court product selectivity tion can 1196); as the in- well conscious or inadvertent opinions im- fusion of recorder’s suppression by hold We now pressions. It clear from the continu- prosecution favorable to evidence congressional emphasis on “substan- ous violates due recital,” upon request accused “continuous, tially verbatim
have no (id. agencies. stated law enforcement Act. The court expressed in the quarrel objective 1332) with the 455 F.2d at :
United States v. is reflected 513 F.2d 41- the division’s (4th cataloging 1975) ; Curry, candid Harrison of Cir. United States v. case law with (4th Cir.), agree. which it chooses not 1306-97 cert. de See United Harrison, States v. nied, F.2d at 429- 46 L.Ed.2d accompanying (1975) ; Hurst, 32 and footnotes. States v. (6th 1975) ; Cir.
argued fense counsel or witness given by the victim of a crime original form should result suspect.” How- arrest of a arresting testimony. now, been, ever, nor are we we not have affirmed, noting in disagreed. court We disputed mandate its Bryant, bound part 591) : (id. at particularly, we only. More dicta was its literal compelled follow felt statutory language it clear makes impos- length the extreme command to that the applies to documents inves- for the loss ing a sanction possession within the the United tigatory notes.2 States. Nowhere in this does record In States, D.C.App., Banks v. United case indicate original that the draft possession A.2d 256 (1973), we Bryant noted tape recording, dealt with a lost rather time of trial. It been held (id. than with rough stated producibility “[t]he pends upon 258): being particu- its within the larities of the statute [Jencks Act].” Therefore, assuming, deciding, without Matthews v. that Bryant may controlling be- here (5th 1969). Cir. [Footnote cause of proce- its directive establish omitted.] investigative notes, dures preserving find we that the failure of Officer Shu- A.B.H., recently, in re D.C. More preserve ler to note card was 3x5 citing A.2d App., (1975), harmless error. Augenblick, United States v. Hines, supra, stated: we States, D.C.App., In Hardy v. United 316 A.2d (1974), we dealt with another appel- find to merit be without We lost note. that the note was We observed com- trial court lant’s contention discoverable,”3 potentially least “at refusing to error reversible mitted (id. concluded at 870-71): complainant testimony of the strike did consti- was unable officer’s conduct officer when [T]he imposi- necessitating produce an interview negligence tute his notes of States, D.C.App., Hardy 3. In Jones v. United use of Our the term “discoverable” significant our A.2d we stated conclu- was deliberate. There is a dif- pretrial “discoverability” circuit never intended sion “that ference between un- Super.Ct.Cr.R. “producibility” der directive in the case constitute . . . .” inflexible rule of exclusion a statement under Jencks Act after witness has testified.
filing of a collection lible which are own terms to statements conclusion of each each officer at the Nor possession government.4 of duty shift. Brady a rule in there basis for such Moreover, requirement apply possible the Act’s to nonexistent material. testimony, sup- provisions relate witness’ add These of the Act further consequent port mandate to trial court to the conviction that it could have portions not, encompass are im- to excise those do meant lost notes. justice aim criminal justification is no The dual of our supra. There Maryland, escape to he ex system guilt note is “that shall not lost presuming impossi suffer,” Berger innocence concluding that culpatory and a denial 295 U.S. production constitutes bility its end, court’s L.Ed. 1314 To we Finally, trial. of a fair partial placed our in the adver- 16 as confidence on Fed.R.Crim.P. reliance homogenization sary system, primary it the entrusting to attempted support for
the future.
Such
result
expected
judiciary
should be
6. The
would not
either efficient
contribute
law
sight
the world in
realities
lose
justice.
enforcement or
disappearance
of an
If
live.
which we
permitted to create
were to be
officer’s notes
locker,
paper.
in his
but could
California,
placed by
Rochin v.
him
U.S. were
Cf.
went to trial.
found
the case
as to whether complaining part: 8. The testified in ducible”, they apparently do not now exist. asking [Officer “When Nance] started me agree Eighth (cid:127) IYet with the Circuit that: weight age height, about “The function of trial court under [the I him I told couldn’t tell him that.” question purely Act] Jencks is limited majority’s 9. The e., treatment produeibility, of the Form 251 i. is the docu- puzzling. They (át 20, also n. state ment ‘statement’ under the Act.” Lewis 13) : States, (8th “That form is not it of record but Cir. investigated hearing should also be 1965). highlights against at the on This ab- basic trial, remand.” At surdity using exclusionary defense counsel made an rule as technique clear had the keep Form and it was enforcement officers cross-examining losing used as a basis for both the from their notes. to be a validly be considered and conclude mg notes Nonetheless, requires com Act “statement”. notes somehow hearing testimony, plaining case for majority remands the witness’ held, such a inexplicably on issue sustain already has been were court already, result, far hope that someone has been decided I would correctly. explain I be enlisted but which has decided wiser than could robbery of the armed how the victim Augenblick, supra In United States v. be so Act could clear terms quoting su- from Palermo v. United prevent testify him from bastardized as to pra, Supreme (393 stated Court he it. Those ing to truth as knows 533) : validly guilty to be jury has found whom merely go free because con should administration of [T]he piece paper.13 stable has lost a “good sense and must be entrusted to opinion, experienced and able my judges experience” of the trial correctly a careful judge ruled after appel- review “appropriately limited precise the ma- issue consideration of late courts.” jority again once wants to have considered judg- I majority fear the am tends to dash that fond on remand. convinced affirmed, hope.12 If the trial inex ments of should be remand conviction plicably respectfully so dissent. ruling reverse acknowledge: unacceptable suggestion majority equally “Even I find does
clear- in reason for ments.” every ly exculpatory, that Officer Nance’s notes and there is basis reflects not would be assuming they victim,, but not be— in reason would could “statement” incorporated accept unless, course, prepared substance was one is also their radio notion that would know run Form 251. the. ingly prosecute innocent defendants.