*2 KILKENNY, Before ELY and Circuit also clothing He testified that the in the Judges, ENRIGHT, Judge.* groups photographs District same, two was the further, analysis he made a similar photograph pistol surveillance of a Judge: ENRIGHT, District robbery used in graph photo- and a FBI morning 6, 1973, February In late handgun apart- seized in the National four men robbed a Crocker *3 ment. Angeles. in Three men were Bank Los Webb, response When Mr. in to the brought April, for the to trial prosecutor’s questions, began to state his opinion that Brown and Swain were in- offense: Brown, defendants Tommie Louis Virgil Nobles, Lee and Robert deed pictured two of the three on the man, David The whose Swain. fourth film, surveillance the district court over- appeared name on the as indictment Jon- objection ruled the defense but not with- Ray Nobles, fugitive athan was a misgiving: out some time of trial. say my personal I must own government’s theory opinion very, very it comes close to jumped Brown behind the tellers’ win- impinging upon province of the cages, dows and moved down the line of jury .... that case [United collecting money drawers, from the cash Cairns, (9th States v. F.2d guarded while the other three cus- suggest 1970)] Cir. you, Mrs. personnel posi- tomers and from various Broady, which seems to authorize this pic- tions. A surveillance camera took very procedure. participants except tures of all alleg- Reporter’s camera, Transcript one who stood beneath the [hereinafter R.T.] edly defendant Nobles No- lines We too are [hereinafter 5-11. troubled proffered testimony. bles]. Cairns, In previously this circuit Appeals I. Brown and Swain wrote: against The evidence and Brown Appellant next contends that over Swain was similar and of sur- consisted objection ground his mony on the the testi- photographs, veillance taken from items province would invade the of the apartment they shared, comparison jury, special Government’s witness, a photographs, eyewitness of identifica- agent with the Federal In- Bureau of tions, and a statement Brown. vestigation photographic identifi- primar- Defendants Brown and Swain compared cation specialist, photo- two ily comparison pho- graphs: attack of certain photograph taken tographs. group photographs, One of bank’s surveillance camera at the time consisting enlarged pic- surveillance robbery police pho- of the tograph and a showing clothing tures the faces and appellant days taken ten alleged prior two robbers to be Brown and to trial. To assist in his identi- Swain, placed fication, enlarged were on a chart next to a he the head area of consisting group photographs second photograph the surveillance enlarged pictures police of Brown enlarged same size as the head area in photographs police Swain as well FBI photograph. The witness clothing items of from their pointed seized similarity then out the in the apartment. expert photo- An FBI photographs two in the nose and graphic identification, areas, Frederick E. line, lines, mouth chin hair ear Webb, compared pho- groups ears, two contours and inner folds of the tographs among things. and stated that the faces other He then testi- police photographs general were the same faces fied that based on all photographs. as those in the surveillance characteristics the individual * Enright, Judge The Honorable B. William United States District for the Southern District California, sitting by designation. photograph surveillance is the individ- In the instant Webb’s police photograph general. ual in “or photo- an- was In reference to the having graphs other all of Brown, individual these he stated broad con- mouth, chin, nose, as to thin-faced,” characteristics : clusions “rather “some- elongated,”. and the . . what ear characteristics . mustache is “[t]he similar, shape eyes, We see no error the admission of nose, jury testimony. eyebrows, this While is the . .” R.T. judge facts, expert testimo- lines Cairns, however, sole 22-24. the tes- ny long timony greater only as an aid has admissible detail. Not jury. agent general compare did the contours shapes but also found ear and lobe F.2d at 644. significant particularly formations concluding That statement undis- termed a facial crease as “dis- puted. situation But whether the is a tinctive” and “unusual.” Government’s *4 proper expert the of one for use testi- Brief, Cairns, p. United States v. mony is the to be determined on basis argument its Cairns, to court in this the assisting of “There the trier. government emphasized also the detail determining more test certain agent’s testimony, example, the may experts when be used than the comparison his nipple in a the center inquiry common whether the un- sense of the defendant’s ear. Id. at 6. layman qualified to trained would be We would hold that Cairns intelligently the determine and best precision should be limited to the as possible degree particular the issue argued briefs; therefore, in its a when enlightenment from without those party expert seeks to introduce testimo having understanding specialized a ny personal photographic on identifica dispute.” subject involved in the the disprove prove tion —whether to simi Ladd, Testimony, Expert 5 Vand.L. larity, required he should first be (1952). Rev. proof make an offer out court Proposed Advisory Note Committee’s presence jury. side the F.R.D. Federal Rule of Evidence After the elicitation of what permit expert (1972). an To depended expert upon in facts the has testify opinion parentage as to his reaching conclusions, court on of a child to a based the resemblance determine has should whether paternity reputed suit would father a preponderance convinced a grossly inappropriate by the be above beyond jury’s facts offered are com just surely, fingerprint as standard. But course, experience. mon court Of identification, comprehensive exam- reaching its must take determination photographs, and other ination aerial party into desir consideration that and evalua- similar scientific technical ing argue his may free to admission be tions, obviously within the realm of are expert position without the benefit testimony. Testimony permissible expert discretion, testimony. in its If particular individual as to whether a may which not be absent clear disturbed photograph portrayed rests some expert may abuse, is convinced that ground. middle Since the Cairns deci- beyond materially jury their assist solely upon exper- relied sion traditional experience amplified ar common as fields, feel it tise we incumbent gument expert counsel, be should faced in ourselves to reexamine issue testify. allowed to Cairns. general test should The same requested have reviewed the We photographic identifi applied be briefs submitted Cairns. Such comparison ob of inanimate cation and the two view allows us to conclude however, courts, jects. should trial one—are cases—Cairns and instant everyday cognizant ex- distinguishable. while Gemeren, teller, Peter Van laymen A bank over their periences of twelve iden- He did may permit to identified Brown court. them lifetimes combined tify per- sub- comparisons but his Nobles photographic make jected utterly experience to extensive sons, they lack cross-examination. objects Likewise, Gary Hoffman, recognize salesman certain distinguish or bank, pointed visiting the out the men of this In the facts such as firearms. alleged ad- on the hold the be Brown Swain we photographs opinion expert’s on the and described surveillance mission personal activities; Nobles of Brown their he too identified identification having error,1 his testi- but stood business counter. to have been Swain subjected concerning mony items seized Defense also Hoffman to ar- can- cross-examination. properly admitted. We duous have been conclude, however, error. Although presented an affirm- Nobles Disregarding prejudicial. strongest defense, alibi attack his key ative identity, the agent’s opinion as to their against was to discredit the evidence against and Swain—the Brown evidence eyewitness testimony, eyewitness him: identification so, Van Gemeren Hoffman. To do rendering overwhelming, the items—was only employed his counsel not cross-ex- the error harmless. attempted amination but also to intro- expert opinion testimony duce on the Appeal II Nobles eyewitness frailties of general examination against Nobles differs The evidence impeach specific eye- and to *5 against from the case Brown Swain. witnesses statements made them is the' absence of surveil- investigator. Most obvious to his alleged photographs, lance for Nobles is Expertise Eyewitness A. Identifica- un- to have been the robber who stood tion derneath the camera than within rather scope. Second, objects its were found testimony offered the of Nobles to connect him to the offense in contrast expert Dr. Robert an Buckhout as wit apartment to the items seized at the eyewit problems ness describe eyewit- Finally, Brown Swain. general ness identification and the testimony impressive ness far less was specific difficulties with the identifica against against than Brown and Nobles tions in case. this The court refused Swain. proffered testimony, concluding bookkeeper testimony province A at the bank identified would invade jury, consumption Brown and in court as well as the that the Swain undue clothing. identify substantially outweigh items of He could not of time would its Similarly, probative value, Nobles. manager the assistant branch and that the offer of proof inadequate. identified Brown and Swain was We in turn can identify court but could not Nobles. conclude that trial court was photographs shape 1. The introduced in this case af of sideburns. This foundation would spectrum expert testimony aiding inadequate, ford a for a trial be would determining expert testimony may perhaps prejudicial, error, depending when be be upon permitted. There can be no reasonable the state of other evidence. pictures fugi- pictured doubt individual robber who The third cage cage tive, allegedly Nobles, moved from was indeed defend Jonathan brother ant Brown. The resolution of the camera The defendant Nobles. resolution clear; Testimony clear, pictures his likeness the conclu- unmistakable. surveillance but expert purpose of an would be useful Nobles of no sion that the individual is Jonathan photograph error, comparison presumably, and hence but harmless. after known pictures entirely The of the man free of who stood to the of Jonathan Nobles is not poor expert, opinion, rear of the bank are of An could be resolution doubt. our quality. only course, lie would articulable characteristics useful. Of discretion concerning testify expert which the could with the trial court. contours, generalities, g., were e. facial Amaral, quested a mat- would become 488 F. United States error. routine, 1973). result desire to (9th ter of we 2d 1148 Cir. avoid. Impeachment B. Although counsel did not defense During coun argue impinged on the condition sought to introduce sel attorney-client privilege, we deem the appropriate investigator Bond, chief John on the relevance to comment Bond Mr. Public Defenders. Federal privilege. of that the witnesses Van Gem interviewed had proposed Evidence as Rules of Hoffman. On cross-examina eren and Supreme tentatively promulgated that he testified had tion Van Gemeren in- Court version] Court [hereinafter telling he Bond that had not recall did 503, Lawyer-Client Privi- Rule cluded only robber the back of bank seen (1972). lege. F.R.D. 235-240 during camera; Hoffman, beneath part pertinent rule in states: That telling cross-examination, had denied (4) (a) communication is “confiden- A Defense all blacks look alike. Bond that if not intended disclosed to tial” to be proof that Mr. offer counsel’s persons other than those to third testify had that Hoffman Bond would in furtherance of whom disclosure is alike” and him that “all blacks look told legal professional the rendition him that “as had told that Van Gemeren to the client or those reasona- services cam the man at the surveillance far as bly necessary the transmission only concerned, Gemeren] he [Van era is the communication. Eventually, man.” of that saw back impeachment of the court ordered (b) privilege. A cli- rule of General through these Bond the witnesses privilege refuse to dis- ent has a conditioned statements person prevent other and to close agreeing to render to the defense disclosing confidential communi- from completion government upon in purpose of facili- made for the cations alleged vestigator’s testimony the state tating professional le- the rendition of investigator’s contained in the ments as gal client, ., *6 services to report. this con Bather than submit to lawyer (2) law- and the his between forego dition, to defense counsel chose yer’s representative, .... upon impeachment, preferring to stand contrast, tentative the Id. at 236. right against self-incrimina his client’s sess., 5463, Cong., 1st 93rd draft of H.R. protection as the of a work tion as well by on the Subcommittee as amended product rule. Justice, Committee House Criminal Judiciary ver- House the [hereinafter stated be For reasons the privilege specific rules. , very that, despite contains low, sion] we would hold promulgate version would seemingly judicious The House only general restric limited and pro^- which conditioning rule, Rule defense, a im tion on the peachment governed privileges discovery be that “shall prosecutorial vides by principles law as Admittedly, common of the prejudicial error. they may interpreted the courts narrowly But to sin order was drawn. light reason in the gle any require a United States out one witness ' U.S.L.W., experience previous . . .” precedent his condition that 6, July 17, p. Supplement, produced inappropriate. is statement be however, provide does, further rule have the essential The defendant must may prescribe rules Supreme right witness; impeaching he Court call an Thus, authority. statutory pursuant credibility need not corroborate day may pre- Supreme some calling Court him to the that witness before ver- of its Rule 503 prior rules such as e., producing record scribe stand, a i. meaning sion, of which literal it statement. Were ed or transcribed protect arguably communica- a serve to otherwise, that such would fear we strong though dissent investigator not without between existed tion as privilege not violated is —that defense. for the and counsel expert discovery med- the names of rules, any prescribed com- But absent appearance at whose ical witnesses ev- rules of federal dictates mon law idence, contemplated the defense. trial is not law does common and the point, imply mean to no views on per- from third protect communications except a serious constitu- to note that sons: question tional lurks here. designed privilege is Since prosecution’s opportunity to for subjective of mind freedom secure possession discover evidence legal seeking advice the client limited the defense is somewhat proposal , oth- no concern with it has we deal with which persons’ mind nor with freedom of er by the is tied to the exercise secrecy attorney’s for desire own right pros- discover from the of the It client’s case. in conduct of a discovery, by itself, ecution. But if for the attor- not sufficient therefore possession information invoking privilege, ney, state privilege defendant against self-incrimination, violate the information came somehow that the is it acting nor client him while if conditioned on the less a violation from some it came opportuni- defendant’s exercise person third benefit May ty to discover evidence? bene- client. on the fits be conditioned abandon- (McNaughton rev. Wigmore, Evidence rights See, ? ment of constitutional original). (emphasis 1961), 2317(2) § Verner, g., e. 374 U.S. Sherbert v. strongly 1790, 1793-1795, Defense counsel did assert 403-406, 83 S.Ct. impeachment deny to condition in the To a defendant the L.Ed.2d 965. infringe upon opportunity discovery opportu- manner ordered could —an right against nity client’s self-incrimination. not withheld from defendants problem troubling. agree discovery prosecutorial This is indeed who sought or from whom When Federal Rule of Criminal Proce- —merely the defendant choos- because dure amended in 16 was Justices right es to exercise the constitutional Douglas Black and dissented. Justice ar- to refrain from self-incrimination reasonably certain, Black wrote: “I am guably imposes penalty the ex- however, that the Court’s transmittal privilege. of that fundamental ercise carry does not with it a decision that (footnote omitted). F.R.D. at 277 the amended rules are all constitutional. agree my . And I Brother *7 “distinguished court” deci- state Douglas proposed that some of the crim- footnote, sion, the omitted referenced in go very inal rules border line if 56, Court, Superior Jones v. 58 Cal.2d they transgress actually do not the con- (1962). 879, Cal.Rptr. P.2d 919 22 372 right stitutional of a defendant not to be charged Jones, In the defendant compelled against to be a witness him- trial, rape requested continuance of a (1966). 252, self.” 39 F.R.D. 272 And impotent alleging for a that he had been Douglas Justice stated: long time, the continuance was nec- and gather may essary The extent to medical evi- which a court essential compel responded prosecution the defendant to disclose infor- dence. The witnesses, pertaining discovery mation or evidence to his a motion infringing concerning alleged privilege ports, case without data and against holding prosecu- impotence. self-incrimination that the is a source controversy among judges, discovery proper, of current the Califor- torial prosecutors, lawyers, Supreme concluded “since and oth- nia Court legal discovery permitted er commentators. A distin- the criminal guished not of a consti- state court defendant is result has concluded—al-
153
Governments,
process
state and fed
due
but
mandate of
tutional
constitutionally
eral,
promote orderly
are
com
thus
of the desire
rather
guilt
pelled
[discovery]
to establish
evidence
truth
ascertainment
secured,
freely
independently
‘one-way’
and
and
street.” G.
not be a
should
charge
prove
Lapides,
coercion
a
Prosecutorial
Cross-Currents
against
Discovery:
out of
accused
his own
A Defense Counsel’s View-
Hogan
217,
(1964)
(1973),
(Malloy
mouth.’
v.
378
point,
219
7 U.S.F.L.Rev.
Court,
[,
1489,
citing
Superior
1, 7-8
12 L.Ed.2d
v.
58
U.S.
84 S.Ct.
Jones
Cal.2d
879,
653].)
People
59-60,
Cal.Rptr.
must ‘shoulder
policy privilege which underlies the sures which could serve as a “link in a against recog self-incrimination tending chain” of evidence to establish nized, guilt offense; ruling “. the United of a criminal Supreme Court, States privilege, ‘that a claim of the trial system prosecu American clearly appears of criminal court must find that accusatorial, tion is inquisitorial, not from a of all the circum- consideration and privi the-Fifth Amendment stances in the that an case answer lege mainstay. challenged its question possi- essential cannot 154
bly
tendency
Wright,
In
v.
have a
to incriminate the
States
489 F.2d
United
(D.C.Cir. 1973),
1181
witness.
Circuit for the
analogous
District of Columbia faced an
131,
325, 326, Cal.Rptr.
323,
Id. at
appellant’s court-ap-
situation.
(footnotes
P.2d
and citations
at 675
pointed
employed
counsel had
an investi-
omitted; emphasis supplied).
gator from the Public Defender Service.
Supreme
investigator
The California
Court is not
potential
interviewed
respect.
alone
this
In
States
United
report
witnesses and sent to counsel a
444, 449,
(S.
Fratello,
consisting
44 F.R.D.
of summaries of
inter-
Judge
D.N.Y.1968),
Pollack concluded: views. At trial the court ordered the in-
vestigator who had testified in behalf of
If,
sought
therefore,
the items
from
copy
the defense to turn over a
the defendants are of a class of evi-
report
government. True,
to the
the or-
ordinarily
privi-
dence which would
be
der
report
was to forward the entire
leged from disclosure under the Fifth
specific,
rather
portions
than to
relevant
Amendment,
ought
the defendants
here,
as
potential
were ordered
but
in-
required
prior
be
to disclose them
crimination
exists
both circumstances.
to the establishment on trial of the
government’s prima
principle
The court concluded that the
case.
facie
discovery
inevitably
criminal
must
basically
one-way
remain
street
appellate guidance appears
Until
firmly imbedded in our common law tra-
that, in
which indicates
absence
dition.
Id. at 1192. As that circuit also
special circumstances,
sought
price
noted,
prosecution
pre-trial
disclo-
There
attempt
has been some
in re-
sure of its
not to
records is
be treated
years
cent
to increase the Govern-
privilege,
as an encroachment on the
right
discovery
ment’s
in criminal
prepared
this Court is not
to condition
example, through
cases—for
statutes
discovery by the defendant under Rule
requiring
give
pretrial
defense to
16(b)
pre-trial
privi-
disclosure of
notice of the names of witnesses to be
leged
possession
records
con-
part
called as
of an alibi defense. But
trol of
defendant.
this con-
Supreme
emphasized
as the
Court has
usually
nection it is noted that Courts
holding
such statutes constitutional
accept the defendant’s view of what
under
Amendment,
they
the Fifth
may
self-incriminatory.
records
only require the defense to turn over
omitted;
emphasis supplied.
Citations
to the Government information which
intends to reveal at trial.
defense
Yet, Prudhomme and Fratello dealt
Florida,
78,
See Williams v.
399 U.S.
pretrial prosecutorial discovery
as
85,
90 S.Ct.
155
eliciting
rehabilitating
any
require
statements
which would
the defense to
by
prosecution
prior
same witnesses.2
turn over
those
statements of defense witnesses which
witnesses,
Since
for whatever
rea-
by
prosecution
could be used
as
sons,
making
damag-
denied
the initial
against
evidence
the accused.
ing statement,
the defense had no alter-
Bais,
People
Id. at 1195. See also
v.
31
present
impeachment
native but
its
Cal.App.3d 663,
Cal.Rptr.
(1st
107
519
evidence,
e.,
testimony.3
i.
Bond’s
If the
1973).
Dist.
prosecutor
validity
doubted the
Wright panel
The
also examined that
purported
contexts
in which the
state-
discovery
perspective
order from the
by
ments were made as testified
the Federal Rule of Criminal Procedure
Bond,
surely
he
had access to
own
his
Act,
16 and the Jeneks
18 U.S.C. §
by
testimony
witnesses and
their
could
3500,4 as we must.
have offered rebuttal
to Bond’s version.
agree
promulgation
summary,
then,
origi-
In
Before the
we
with the
nal
procedure,
rules of
Circuit for the District
criminal
that
Columbia
was
discovery
doubtful whether criminal
right
The defendant has a
under
permitted.
1966, however,
Rule 16
compel
the Fifth Amendment
greater
discovery.
liberalized toward
investigate
ease,
state to
its own
find
pertinent
evidence,
portions
prove
The
its own
of Rule
its own
16 are
duty
facts.
follows:
defense has no
help
prosecution
(b)
Books,
convict
the de-
Other
Papers, Docu-
reject any
fendant.
ments, Tangible
We therefore
Objects
rule
or Places.
Enterprising
may
arguably
panel Wright gave
counsel
assert
4. The
due consideration
completeness,
problem
that
g.,
the evidence doctrine of
e.
which could arise if a wit-
Proposed
Cal.Evid.Code
356
(There
§
Feder-
ness refreshed his recollection.
Evidence,
al Rules
nothing
suggest
Court version
in the record to
Bond used
require
reports
House version
recollection.)
disclosure.
his
to refresh
his
by
But as the comment to
356
the Assem-
§
That court considered it
rule
“hornbook
bly
Judiciary implies,
that,
Committee on the
investigator]
evidence
[the
had
used
discovery device,
parts
doctrine
er, only permits
report
is not a
but rath-
of his
to refresh his recollec-
stand,
certain relevant
prosecu-
evidence to
tion while on the witness
be admitted that would otherwise
inad-
be
tion would be entitled to examine those
adversary
parts
report
permitted
missible. The burden is on the
and would be
“inquire,”
is,
parts
report
cross-examine or
rebut.
make
to
cross-examining
use of
those
Proposed
may
Since the
Federal Rule
shift
[him].”
Upon custody control, defendant the court his motion of a or gov- attorney upon showing materiality for the a of order the to the preparation permit government’s ernment the defendant case photograph books, request inspect copy and or and that the is reasonable. documents, tangible objects, papers, Except toas scientific or medical re- copies por- ports, buildings places, or or or this subdivision does not autho- thereof, inspection discovery are the rize tions possession, which within the or re- of custody ports, memoranda, or control of the or other internal government, showing by of mate- documents made the de- defense riality attorneys preparation fendant, agents of his de- or or his request investigation fense and is reason- that the connection the with or Except provided case, able. as subdivi- or statements defense of of (a) (2) [examinations, tests, by defendant, sion by govern- ex- made or periments], does witnesses, this rule not autho- ment or by pro- or defense inspection spective government rize the or or defendant, wit- of memoranda, ports, nesses, agents or other internal or government gov- by attorneys. documents made agents ernment in connection with the Emphasis capitalization added. investigation prosecution or of Each subsection contains by gov- or statements made product5 savings clause, work e., i. prospective gov- ernment or (other witnesses portions. govern italicized But ernment witnesses than the de- product subject ment’s work to an im fendant) agents government portant exception, Act, the Jencks 18 U. provided EXCEPT as 18 U.S.C. § 3500, provides S.C. which § relevant 3500. part: (c) Discovery the Government. (b) After a witness called grants sought If the court relief United has States testified on direct defendant under subdivision examination, shall, (a) (2) (b) mo- rule, or subdivision of this defendant, tion of the may, upon govern- order the Unit- motion of the produce any ed ment, States to by requiring condition statement its order (as permit defined) hereinafter govern- that the the wit- defendant possession ness in the inspect copy ment graph photo- the United or subject States which relates to reports, or scientific medical books, matter documents, tangible as to which the papers, witness has ob- jects, copies testified. portions If the entire or thereof, contents of which such pro- statement relate to the defendant sub- intends to ject duce at matter of the the trial and which are within apply attorney’s product 5. To cess the defendant’s work *11 witness, it to be included within the terms of subsection the court shall order (c). directly for We would conclude that the delivered to the defendant work product of defense is in his examination and use. inviolable these also, circumstances.6 See United States Wright, 489 F.2d 1189-1190 (e) “statement”, The term as used 1973). (D.C.Cir. (d) (b), (c), of in subsections and any Finally, may the in make brief this section relation to witness alleged by States, comment misconduct of the United means— the called prosecutor. the A of the entire review by (1) a statement made written permits transcript to conclude that us signed or other- said witness and prosecutor’s require the conduct does not him; approved adopted by wise or fact, the record indicates reversal. mechanical, (2) a stenographic, judge trial conducted the case the electrical, recording, or or a other properly, re- most and the defendants thereof, transcription a which is ceived a fair trial. substantially of an recital verbatim part, in Affirmed reversed re- part, by oral made said witness statement manded. contemporaneously and recorded making such oral state- with of the Judge (concur- KILKENNY, Circuit ment; or ring dissenting): and statement, (3) a however taken recorded, transcription a or or AND APPEALS BROWN SWAIN by any, thereof, if said wit- made concur the affirmances of the I grand jury. ness to a convictions, Swain not Brown and but Thus, while Rule is framed terms majority. the for the reasons stated pretrial discovery, the of its inclusion of judgment my the It is considered Act leads us to conclude that Jencks appeals are from records on these free discovery to dur- Rule 16 has relevance error. may ing specifically, trial. And NOBLES’ APPEAL discover, impeachment, purposes Turning appeal, government now the Nobles’ statements of witnesses who disagreement complete exception myself in find have testified. But such reports physical proposed or mental examina- or 6. note new amend- We experiments of scientific tests or Pro- tions and Rules ments to the Federal of Criminal particular stayed by the pending made in connection with and cedure are have posses- copies thereof, August 1, the Congress within or It until must defendant, changes proposed sion control of the which the or noted that include the Alibi, 12.1, as evidence intends to introduce and defendant addition Rule Notice of pre- Upon 12.2, were at the trial or which chief of Defense Based Mental Notice undergone pared by Also, whom the defendant witness Rule 16 has re- Condition. ; the re- the trial when intends to call at vision note the revised Rule testimony. reports 36(b), relate De- sults or Disclosure of Evidence Upon (C) request of : -witnesses. fendant Defense subject (1) government, fur- defendant shall Information to disclosure. (A) tangible objects. government names Documents a list of the nish the government, Upon request intends de- witnesses he of the of the addresses permit government presentation in- of the case fendant shall in the to call pa- request spect copy photograph books, or chief. When n tangible pers, documents, photographs, has witnesses ob- names and addresses of thereof, government, jects, copies portions defend- which been made or or possession, custody perpetuate tes- con- ant shall be allowed are within or timony in accordance such witnesses and which the de- trol the defendant provisions Rule 15. as evidence fendant intends to introduce emphasized, however, that Rule It must be chief the trial. subject (B) Reports 16(b)(2), disclo- and tests. Information examinations inviolability sure, de- government, of internal Upon request de- retains of the government permit in- fense documents. fendant shall photograph spect copy results majority objected. judge sympathy indicated the conclusions government’s impeachment with the the issue of the defense view and asked witness, authority Bond.1 To understand the is- defense counsel to in- furnish dicating sue, necessary government to outline in detail it is was not leading up entitled events action memorandum. de- After counsel, judge. time, fense trial for the second jected prosecutor demand examination, govern- On direct document, judge see the *12 the conducted a ment identified witness Hoffman Nobles hearing prosecutor and held the that standing as the under the robber sur- investigator’s not entitled the to see veillance also identified him camera and memorandum Bond until took the wit- photo spread police from a and at a impeached ness stand and Hoffman’s line-up prior On to trial. cross-exami- testimony in connection with the memo- attorney Hoffman, nation, asked Nobles’ randum, only and then to the extent that you “And isn’t it fact told a that Mr. any any and all statements defendant you appear Bond the that to blacks to all prior delivery be excised to the responded, be alike?” Hoffman “I prosecutor.3 don’t believe I indicated that to him.” Later, attorney Continuing, inquired, defense counsel called Bond. the “You inquired stating The court as to the nature of do recall that not to Mr. testimony. responded Bond’s Counsel replied, Bond?” Hoffman I “No, do testify attorney that the repeated, witness would as to cer not.” Nobles’ “That photographs tain and that “. . .he all blacks alike.” look Hoffman re- going impeach is to two sponded, “No, not, statements of I do sir.” At that inquired time, The court then Mr. Hoffman.” the bench conversation outside presence of defense he jury, prosecutor the counsel whether of the the over, completion requested turn of Bond’s the defense counsel to furnish a portions copy “any testimony, the relevant interview, notes or record- prosecution. regard ed document to the Defense statements of Bond—in Mr. to phone thereupon counsel call.”,2 refused. The and noted “I notice he portions copy, indicated has a copy that those of the tes and would I like to have a timony dealing impeachment with that at this time before I am proceed would be After an to excluded.4 extended able with redirect examina- fully judge colloquy in tion which ex of the witness.” Defense counsel 3. 2. 1. sure there are no statements has man’s government may mony until distinguisli you, amination completed believe going And if he does make such a and Mr. Bond ers way Chief “THE It “TI-IE Association. indicated the is [*] Mr. time —but which to rule as follows: testimony conceded that phone. Investigator, COURT: Allis, COURT: his entire witness has taken the stand and between government [*] make the memorandum —not before while after relative not the last I people such a [*] . I Federal Public Defend- have will think conversation was to his time, part entitled to an ex- say of the black race. the memorandum statement, impeaching first of [*] statement, about The Court this .... of Mr. Hoff- after he lias inability it. to assist :¡: all, then I testi- if he am tions peached excise which contain nature.” port. testify or sion sent this izing defendants particular imperative therein, orandum, particular randa which “THE your court, to me that with the particular on of Mr. Bond’s that, it prosecution; defendant, witness will such as recitals COURT: any would be [R.T. memorandum. witness that contained perhaps you may my other memorandum or memo- Court, [if] you memorandum 470-471]. there are matters order Iloffman. Mr. necessary Mr. have the nothing statements after an in-camera have to be course, have. or Allis is an officer of this is investigative Bond I am not something going particular I would view it else It the defendants opportunity If involving is allowed goes only turned over in that you those contained the im- general- of that only to this report repre- mem- por- ses- only require course and had Bond taken witness plained he would stand, preliminary permit inspection those without discus- defense advisory ruling sions and the court’s dealt memorandum which portions of the n production Bond, pro statement, impeaching questions doubt, would have used Hoffman, offered said that he pounded the court examining memory. expedite the statement to refresh the trial matter, pro- For that such record of the report excise in camera and there ceedings necessarily points to con- the Hoffman this portions relevant nothing again Additionally, re clusion. there was impeachment.' counsel Defense per- amateurish about counsel’s jected statement the court’s offer with doing formance him a position.5 then and would be counsel Defense of his great injustice he to assume that did not proceeded of Bond the examination having properly prepare witness, did not ask witness but as a defense him read made the memorandum. these had not Hoffman him whether circumstances, telephone price during a defendant con the statement having pay must April 6, a witness take *13 “. versation stand, testify contrary witness and to appear alike.” all blacks to be that witness, declarations of another is to appellant Obviously, is in no bet- the open subject throw to normal the entire position if Bond had been ter than make cross-examination and to his testi- called, had made testified that Hoffman mony where, otherwise, vulnerable it and on cross-examination the statements might Surely, have been shielded. the any at *14 612, Proposed Rule Federal Rules of My conclusions with reference to the Evidence, Congress as submitted to the questions propounded to Hoffman are by Supreme permits Court, an ad- equally applicable questions pro- to the versary inspect, cross-examine on and pounded witness Van Gemeren. portions writing offer evidence of a pre- We are not here confronted with by used a witness to refresh his recollec- discovery proceedings, trial such as testifying. tion either before or while those before the in the California proposed The House has an amendment majority, cases cited and United require court, which would in its Fratello, 449, States v. F.R.D. 444, 44 discretion, pass on whether inter- speaking (S.D.N.Y.1968), to the 451 justice ests of would be served di- type procedure. same more Much vulging writing. the contents of the recognized problem, akin to our proposed legislation in line with majority, Florida, Williams 399 inspection the in by suggested camera here U.S. 90 L.Ed.2d 446 S.Ct. judge. the trial event, it is (1970), where a state of alibi notice crystal Wright clear that the decision in upheld statute in the was face of a Fifth turns on the overbroadness of the order challenge. constitutional Amendment requiring production report. of the quote page We from 1189: Wright, 489 F.2d United States v. (C.A. addition, governing D.C.1973), “In is closer to the the rules target, distinguishable but is on at least documents used to refresh recollection grounds: Wright important (1) justify requiring three could in no event overly required to turn the order was Reeves over his entire broad investi- gative inspec- report prosecution. defense counsel to surrender for As a only report, tion the entire rather than witness Reeves testified specific only portions im- relevant as to two matters —his interview with January peaching there, prose- question; (2) Richardson 19 and his ex- lighting seeking cutor to use amination of the conditions statement Assuming evidence, rather than at the scene of the crime. as substantive (3) they impeachment purposes; had been used to refresh his rec- trial, parts in- of his those ollection at
vestigative report relative to this tes- timony possible and of use to Gov- cross-examining Reeves ernment respect to this would prosecu- turned over to be
have
tion. [*] [*] [*] [*] [*] n x- report “Even if Reeves used recollection, only those his refresh relating report
parts tes-
timony have on direct need
turned over to Government.”
Here, majority concedes precision and lim-
order stated challenged impeach- ited areas
ment. repeatedly the trial stated
As
judge, concerned with we are here Act, U.S.C. § Jencks problem 16, F.R.Crim.P. Our with Rule simple law eviden- on a common centers witness,
tiary question who of whether purposes, impeachment
was called admittedly produce the notes he must subject impeachment. on the
made
Finding error, affirm
judgment lower court. *15 Individual, HUDGENS, Petition- an
Scott er-Cross-Respondent,
NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-
Petitioner.
No. 73-3264. Appeals,
United States Court
Fifth Circuit.
Sept. 25, 1974.
rule to
notes
criminal
concerning
prospective
law is not unusual:
interviews
Although
policies support-
.
.
witnesses. The court states :
.
ing protection
attorney’s
prod-
“[W]e
are
of an
satisfied
notes here in
work
question
product
represented
uct
[have
the work
stated with
been]
reference
and,
litigation,
they
attorney
strong-
civil
are
defendant’s
under
even more
the doc
ly
applicable
Taylor,
495,
proceedings.
trine of
criminal
Hickman v.
329 U.S.
especially
produc
strong tendency
(1947),
There
is “an
67
451
S.Ct.
91 L.Ed.
protection
compelled.
tion
toward the
should not have been
materials
product’
expressed
attorney
regard
‘work
fears
an
therein
criminal
Thus,
inviolability
attorney’s
thoughts
cases.
in relevant
criminal
of an
cases
(admittedly
possibility
inefficiency,
few),
the courts have
unfairness
consist-
ently
sharp
equally applicable
practice
are
held
statements
witnesses
setting
product’
.
criminal
case.”
244
to be the ‘work
an
of a
attorney.” Annot.,
(1971)
A.2d
Notes
notes if he had made asked was appellant cannot claim for this witness a conversation, telephone the the time of right which was not to himself available the responded he had and then that he had if taken the stand witness under production prosecutor the had asked for the same circumstances. counsel, after the If defense notes. judge, failed from the direct order Closely point Harris is v. New inspection, the produce the notes for York, 401 U.S. S.Ct. 28 L. the judge, no have ordered doubt, would (1971), ap Ed.2d 1 where the court testimony jury the stricken and proved the of a introduction statement disregard it. been instructed have cross-examination on which could not happens in Here, as a well-tried often constitutionally have utilized on the attorneys judge antici- the and the direct examination the defendant. problem pated the defense counsel and defendant, There the court held the that having saved the embarrassment was having voluntarily stand, the taken was presence testimony the stricken in the obligation truthfully speak under an good jury. may trial the It have been confronting accurately, tactic, appellant is do not but I believe previous statement, him with his in on it. entitled to cash prosecution doing was uti no more than lizing truth-testing coun- de The is clear that defense traditional record process. Here, adversary on his desk if vices had the Bond statement sel might utilizing produced, in connection with it the memorandum show and was alleged If of Hoffman. that Bond did not the cross-examination include customary forming material im- trial had followed basis Fourth, refus- me that lie Fifth Ninth “If Mr. Allis indicates to Amendments going possession that, protect to allow in whose do then am not the defendant es to reports turning testify in that are from them over for witness any entirely up Now, Allis as to Mr. reason. area. portion, any, Mr. testi- if Bond’s to what talking not about “THE We are COURT: mony he 520]. to elicit.” [R.T. wishes post pretrial discovery. This carefully My time, discovery. position at this has been considered 5. “MR. It ALLIS: ruling narrowing my your Honor, Court, dis- I am Rule 16 is the other very covery Court, specific [R.T. 526]. Federal area.” consents peaching questions Wright recognizes, to Hoffmañ. If that as a Hornbook rule true, integrity evidence, investigator were mony of Bond’s testi- that had the severely parts report would be diminished. used of his to re- prosecutor, requesting pro- recollection, prosecution fresh parts duction of the statement for cross-exam- would be entitled to examine those ination, doing report relating “. impeachment, more of the utilizing] permitted than traditional truth- and would be to make use of testing adversary proc- devices of the them in the cross-examination. The opinion goes emphasize ess.” 401 at 645. S.Ct. then U.S. practices investigator One of the most common report em- did not use the ployed Wright, in the art of cross-examination is to refresh his recollection. theproduction evidently nothing to ask notes or there was in the assuming statements which a witness have record to warrant the court investigative used refresh his recollection. that the statement in the report was used the witness to re- purpose develop of a trial is to Here, pre- fresh his recollection. suppress truth, not it. We can as- mentioned, viously pres- I feel that the appellant’s sume that counsel table, ence statement on counsel playing games and that the memoran- interrogating his use of the statement dum probably made no reference to the lengthy colloquy Hoffman and his impeachment questions propounded to opposing the court and counsel would Otherwise, the witness there Hoffman. clearly indicate that Bond had so re- logical would be no reason for the refus- freshed his recollection. produce al to it.