LEV v. UNITED STATES

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Argument of Anthony Bradley Eben

Chief Justice Earl Warren: Number 435, Harry Lev, Petitioner, versus United States of America, and Number 436, Raymond Wool versus United States of America, and Number 437, Marvin Rubin versus United States of America.

Mr. Eben.

Mr. Anthony Bradley Eben: May it please the Court.

On occasions in the past when I have had the great privilege of appearing before this Court, I have had the temerity to call the Court's attention to the fact that I'm somewhat hard of hearing.

And, in the past, the Court has treated me most courteously and kindly.

And I note since my last appearance here that some additions have been made which I'm quite sure will do away with the difficulty.

I'd like the Court, however, to keep that in mind in the event that I do not appear to understand any question which you may put to me.

Your Honors, these cases come --

Justice Felix Frankfurter: In short, you -- you do not want us to withhold asking questions.

Mr. Anthony Bradley Eben: It might not.

Justice Felix Frankfurter: You do not want us to withhold asking questions, do you?

Mr. Anthony Bradley Eben: No, by no means, do I -- I welcome it very much.

These cases come to this Court, may it please the Court, upon writs of certiorari which were issued to the Court of Appeals for the Second Circuit as a review of judgments of that Court.

There are three petitioners here now on three separate grants of certiorari.

Those petitioners are, respectively, following the numbers assigned by the clerk, Mr. Lev, who is represented by me, petitioner Rubin who is represented by Mr. Sullivan of the New York Bar, and petitioner Wool who is represented by Mr. Albert Treiman of the New York Bar.

The Court has seen fit to consolidate these three particular cases for argument and has granted us an hour and a half.

I would propose, with the Court's permission, to argue for 35 minutes, and Mr. Treiman will argue for 20, and Mr. Sullivan will conclude with the final 35.

Originally, this case developed in New York on the basis of an indictment which was returned in the Second Circuit charging the petitioners here and filed by the defendants in that case with a conspiracy to defraud the Government of its governmental functions in the administration and procurement of the Quartermaster Corps.

That indictment followed a very full and extensive hearing before one of the Senate committees, approximately a year or two before the indictment had been returned.

As part of the indictment, as part of the conspiracy, it was charged that petitioner Lev and petitioner Rubin had one Ades, who was another defendant in the case but who was not here on certiorari, would offer and give money and other things of value to various persons connected with the Quartermaster Corps Office in New York for the purpose of inducing them to disclose confidential information prior to the awarding of any contract by the Quartermaster Corps to corruptly grant deviations in pay in connection with such contracts when they were granted and, finally, to influence their matters -- their decisions on matters pending before them.

At the outset of the case, when the Government undertook to prove its case, they opted, first, a witness who is an expert and who testified purely on technical matters involving procurement for the Quartermaster Corps.

The next witness for the Government was a gentleman by the name of Carlin, and he figures such reliefs throughout our entire discussion here.

Carlin, according to his testimony and, here, his testimony was offered to prove those things that I have just mentioned.

He was a certified public accountant.

He testified that sometime during the course of the year 1952, he was present in the office of a Mr. Ades, who was a defendant, as I've already said to the Court, and a Mr. Levy, not to be confused with the petitioner Lev.

Those gentlemen were conducting a business in New York and according to what Carlin testified to, Rubin appeared and told them that he was very influential in the Quartermaster Corps in New York, sometimes referred to during the course of this argument and of the brief says “16th Street” that he knew intimately the personnel over there, that due to his intimate connections with that personnel, he would be able to get Levy and Ades' contracts.

Keep in mind that this is the Carlin testimony that I am now developing for the Court.

According to Carlin, Rubin also said, on this particular occasion, that 5% of every contract, the price of every contract, ought to be given to him so that he, in turn, might turn it back to the people in the Quartermaster Corps at 16th Street who had been doing him favors.

He also said that, due to his acquaintanceship with these people and the fact that he would be turning over such money to them, that he could get deviations from contracts, speaking generally, that he had some power of control over the choice of the inspectors who ultimately, in the event a contract was awarded, would inspect the work under that contract.

At the conclusion of his testimony, Mr. Sullivan, who will appear here before you on cross-examination, was able to develop from Mr. Carlin that he had given a prior statement to two Senate investigators named Belavan and Pool.

Mr. Sullivan also developed that that -- those statements related to the matters concerning which Carlin had testified in this trial.

He also stated, in response to a direct question, that he believed that he had signed such a statement.

Now, the trial judge, upon demand being made by counsel for Rubin to produce that statement, refused to order the Government to do so on the grounds that the proper foundation of inconsistency had not been shown.

And, with that, that was the end of the matter insofar as the trial was concerned.

This trial, Your Honors, was decided ultimately in April, I believe, of 1957 and resulted in a finding of guilty as to virtually all of the defendants involved, including the petitioner represented by me, who is subsequently sentenced to the custody of the Attorney General and, also, to pay a fine.

Two months after this decision in the trial court, this Court handed down its now famous decision in Jencks versus the United States.

Accordingly, counsel for Mr. Lev on appeal, as well as counsel for the other petitioners, raised the question under the Jencks case as to whether or not, on the basis of this record, they were not entitled to see the Carlin statement and the refusal of the trial court to so grant them permission amounted to prejudicial error.

The Government, almost a year later and, apparently, for some reason or other, it took that long for the briefs to be written and, of course, to get it into the Court of Appeals.

The Government, almost a year later, in April of 1958, filed with the Court of Appeals, not the District Court, but with the Court of Appeals, a sealed envelope which purported to contain a memorandum given by Carlin to a Senate investigator or to these two Senate investigators.

No one on petitioner's side has ever seen that memorandum.

I understand, from the Government, that the sealed envelop is in the possession of the Clerk of this Court and available to Your Honors for examination.

At the same time that they filed the sealed envelope containing this memorandum, the District Attorney filed an affidavit in support of the sealed envelope when they use that expression, which he said that this was what he had received from the Senate Committee here in Washington and that he had been informed by the acting-general counsel of that Committee that it was the only record that they had of any interrogation of Carlin.

They also filed a -- an affidavit of Mr. Belavan who, as you will recall, was one of the investigators who took the statement from Mr. Carlin, according to Mr. Carlin.

This affidavit of Carlin was dated some three years after the events which it purported to describe.

In it, he said that in 1955, he and Pool had called upon Carlin in New York during the month of March --

Chief Justice Earl Warren: We'll recess now, Mr. Eben.

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Argument of Anthony Bradley Eben

Chief Justice Earl Warren: Mr.Eben, you may proceed.

Mr. Anthony Bradley Eben: Thank you, Your Honor.

Shortly before the Court recessed, I had alluded to the fact that the state of the record, one of the first that went up on appeal, was that there had been a prior statement given by the witness Carlin, concerning the events to which he had testified upon the trial, and I submit, of course, at this point that on that state of the record, at that particular time in view of the fact that the Jencks case followed shortly thereafter, in the Court of Appeals, a reversal would have been required, probably with a remand.

Undoubtedly, the Government was aware of that particular circumstance because, as I also said a short time ago, about a year later, they filed this memorandum to which I have made reference and a -- an affidavit in support of the memorandum.

That memorandum, among other things, established -- it believed the following, that Belavan and Pool, the Senate investigators, had had an interview with Carlin in March of 1955, some three years prior.

That, according to Belavan, this was the only interview that he quote “recalls”.

He then stated that, on information and belief, he did not believe that Mr.Pool had -- had any other interview with Carlin but that he did not know Pool's whereabouts at this particular time.

Of course, 3500, Title 18 U.S.C. 3500 had come down prior -- and had been passed by Congress prior to the time that this particular affidavit was filed.

So, Mr.Belavan, in preparing his affidavit, then, said in the words of the statute that he had summarized generally what Carlin had told him during the course of this interview, that this was not signed or adopted by Mr.Carlin but that he had prepared it purely for Chief Counsel Kennedy of the Committee, before whom Carlin was subsequently, some six months after the signing of the statement or the giving of the statement, before which Committee he testified.

He then said, also in the words of the statute, according to his affidavit, that the memoranda was not a substantially verbatim recital.

So, I say this are the words of the statute adopted in the affidavit and, undoubtedly, with an eye on the statute.

Of course, I point out to the Court immediately that these are merely conclusions of the witness or the affiant in this particular case as to what the memoranda showed.

Now, when the Government filed that particular memoranda supported by this affidavit, a number of questions of fact, as we view it, arose in the Court of Appeals, one, there was certainly an issue as to whether or not there was a signed statement.

And, according to Carlin, there was.

Two, even if there had not been a signed statement had there been a statement which had been adopted or accepted in any fashion by Mr Carlin.

And, thirdly, was it a substantially verbatim recital of what -- of an oral statement of the witness.

The Court of Appeals, this we are most critical, decided, one, that there was no other statement and it did that purely by reference to the ex parte affidavit of Belavan without any cross-examination or inquiry being permitted into the matter whatsoever, by petitioner or any of the other defendants.

It also decided that the statement had never been adopted in any fashion by Mr.Carlin and, I submit most respectfully to this Court that the only way that the court below could have reached that conclusion would be by a full and complete 100% reliance upon what Mr.Belavan said in his ex parte affidavit, again, without having it tested by cross-examination of anyone.

Justice John M. Harlan: Then -- was there anything --

Mr. Anthony Bradley Eben: Third --

Justice John M. Harlan: Did -- did Carlin say anything in his testimony as to whether he had adopted it or seen it?

Mr. Anthony Bradley Eben: No, sir.

No, sir, he did not.

Justice John M. Harlan: The record is silent on that.

Mr. Anthony Bradley Eben: His -- his testimony -- his testimony only was that he believed he had signed it.

Justice John M. Harlan: Yes, I --

Mr. Anthony Bradley Eben: That was all.

Justice John M. Harlan: Yes.

Mr. Anthony Bradley Eben: And, Judge Kaufman, the trial judge at the particular time for the very fast finish to the question, he said that there was nothing there that would require him to -- to look into the nature of the document and the trial and procedure from there on.

And, no other request, I might add, that, because of that, ruling were made for the statements of any other witness who testified during the course of the trial, a matter which would be eluded to by counsel who'll follow me.

Justice Felix Frankfurter: The Jencks came down after the trial.

Mr. Anthony Bradley Eben: Excuse me?

Justice John M. Harlan: I said the Jencks came down after the trial court?

Mr. Anthony Bradley Eben: Yes.

That's correct, Your Honor, although, I still believe that Judge Kaufman was wrong in requiring a foundation of inconsistency to be laid prior to the introduction of or the production of the document.

That seemed to be the rule in virtually every other Circuit, except the Second Circuit, at that particular time.

Now, the third question which was before the Court was whether or not this was a substantially verbatim recital of the oral statement given by Carlin.

And, the Court decided that, since Mr.Belavan had so characterized it, it was.

But, it went on in this particular instance to say that it had examined the internal evidence, which I put in quotes, “Itself and that internal evidence tended to bare out the statement of Mr.Belavan that it was not a substantially verbatim recital.”

Now, we submit again, I say to the Court, most respectfully, that with these three questions of fact at large that it was most improper for the Court of Appeals to decide this case purely on the ex parte affidavits of Mr.Belavan.

And, it did decide it in this fashion, against petitioners.

It stated that, while it was true that under Jencks it was error for the trial court to deny the petitioners the Carlin statement.

Nevertheless, Congress had seen fit to pass, 18 U.S.C. 3500, sometimes referred to as the Jencks Act, and that had a very narrow definition as to what statements were, that a summa -- a general summary of what a witness had told a government agent was obviously not within the -- within the purview of the statute and, therefore, in the event of a new trial, it would not be open to the petitioners and, therefore, he affirmed the conviction.

Justice Charles E. Whittaker: May I ask you --

Mr. Anthony Bradley Eben: Now --

Justice Charles E. Whittaker: May I ask you, sir, did counsel for your client, Lev, make any demand for the production of such a statement?

Mr. Anthony Bradley Eben: No, sir.

Justice Charles E. Whittaker: He did not?

Mr. Anthony Bradley Eben: He did not.

And, if I may touch on that for a moment, since you have raised it, sir, the -- my client, Mr.Lev's counsel at the time, was the gentleman who opened up the cross-examination as to Carlin.

He was the very first.

He was able to illicit from Carlin, and you keep in mind that this was at the very outset of the trial in which a large conspiracy had been charged.

He was able to illicit from Carlin that Lev was not at this particular meeting that he reported, that he knew nothing at all about Lev at that particular time.

I think that, had petitioner's counsel at that particular moment urged the production of the document, that he would have had no standing whatsoever.

But, subsequently, he was tied up by other evidence to Rubin who is largely implicated by this statement and, under the Court's instructions, the familiar, usual, basic instructions are always given in conspiracy cases, he was tied to Rubin.

And, Rubin was largely, very, very largely implicated in the statement of Carlin.

But, I say there was no point at that time in petitioner's then-counsel to make the objection.

Justice Potter Stewart: Did you renew an objection after the Rubin connection emerged?

Mr. Anthony Bradley Eben: There was no other objection after that.

Justice Potter Stewart: Or no request for the statement at that point?

Mr. Anthony Bradley Eben: No, sir.

Everyone seemed to be content to take Judge Kaufman's ruling at the time.

And, if you ever get a chance to examine the trial record here, you will understand why, because the Judge is very short with counsel and had been short with them all the way during the trial and, although I was not in the trial, I've examined the record and it appears to me that counsel was somewhat intimidated, particularly, in view of the fact that the Court had already announced what his ruling would be on this type of thing.

No one again ever made any such objection and, of course, I point out to the Court that Jencks had not come down and there was some authority at the particular time with some courts, not the majority view but the minority view, that a foundation of inconsistency had to be laid before there could be any production even to the Court in the very first instance.

In any event, the record makes clear that no one again made any objection.

As I said before, may it please the Court, the -- we regard this error as a most serious error and we think, apart form the question as to whether or not this was a substantially verbatim recital, that the denial of the cross-examination alone to show whether or not there was not another written statement or that this statement had not been adopted or signed was most serious.

I point out again to Your Honors that, in adopting or signing a statement, it is not necessary, really, that a person sign it.

He might conceivably be in a room when his statement is read to him and, if he remained silent under such circumstances, as a reasonable man would speak out, that might, in itself, be an acknowledgement.

Nobody was given the right, whatsoever, to cross-examine Belavan as to whether or not the events which had occurred three years before were, in fact, true.

And, I also point to the language of the Court in which it finds that this was a substantially -- it was not a substantially verbatim recital.

There is no positive language there whatsoever.

The Court seem to, and that is the court below, seem to equivocate when it said that this internal evidence tends to bear this out, that this was not a substantially verbatim statement.

I think, had we been given the right to cross-examine, we might well have established that this was a statement which would have been producible under the Jencks statute, as well as under the Jencks Act itself.

Justice Felix Frankfurter: Is it your contention that the fact that the statement was signed, was it was signed or is that in doubt, was the statement signed by Carlin?

Mr. Anthony Bradley Eben: Well, the question of fact arose this was way, Mr.Justice Frankfurter.

Carlin had testified that he had signed the statement.

Belavan said that there was no signed statement.

That was one question.

The second one was, even if they had not --

Justice Felix Frankfurter: The news of the statement would disclose who is right, wouldn't it?

Mr. Anthony Bradley Eben: Excuse me?

Justice Felix Frankfurter: The statement itself would show whether it was or wasn't signed.

Mr. Anthony Bradley Eben: Yes.

That would show right on its face.

Justice Felix Frankfurter: So that --

Mr. Anthony Bradley Eben: That would show on its face, whether it was signed or not but, then, I point out --

Justice Felix Frankfurter: Before you --

Mr. Anthony Bradley Eben: It might have been adopted.

Justice Felix Frankfurter: Before you go onto that, I -- if it were signed, if the statement is signed, in your view, does that automatically bring it within the statute?

Mr. Anthony Bradley Eben: Yes, sir.

Justice Felix Frankfurter: Well, now, whether it was or it wasn't signed can be determined by inspection, can it not?

Mr. Anthony Bradley Eben: That's right.

Justice Felix Frankfurter: Did the Court of Appeals inspect to find out whether it was signed?

Mr. Anthony Bradley Eben: No.

The Court of Appeals said that it was not signed, of course, and secondly, it examined the statement itself to find out the nature of the statement.

Justice Felix Frankfurter: Well, therefore, you're not contesting the finding by the Court that it wasn't signed, do you?

Mr. Anthony Bradley Eben: No.

Justice Felix Frankfurter: No?

Mr. Anthony Bradley Eben: No.

Justice Felix Frankfurter: You then say -- I want to go step by step because it's a very tricky statue, at least for me.

Mr. Anthony Bradley Eben: Yes, it is.

Justice Felix Frankfurter: You then say that the statement might be adopted or approved.

Which one do you rely on, they were both adopted?

It might be adopted without being signed.

Mr. Anthony Bradley Eben: It might be adopted or approved by the witness, if not signed.

Justice Felix Frankfurter: As to that, what is your position?

Mr. Anthony Bradley Eben: Excuse me?

Justice Felix Frankfurter: As to that, what is your position?

Mr. Anthony Bradley Eben: We say, we don't know.

That's really the basis of our complaint, that we had no way of knowing, that this well might have been adopted or approved by the witness Carlin.

Justice Felix Frankfurter: Well, if the -- if the record is barren of a scrutiny of that issue, nobody can tell.

Mr. Anthony Bradley Eben: That's right, and without cross-examination of valid --

Justice Felix Frankfurter: Well, but the cross-examination would have to be now and not then.

I mean, it couldn't have been because that issue wasn't in controversy.

Mr. Anthony Bradley Eben: Well, actually --

Justice Felix Frankfurter: What they --

Mr. Anthony Bradley Eben: What we're contending for would be a voi dire examination.

Justice Felix Frankfurter: I --

Mr. Anthony Bradley Eben: And, we say that --

Justice Felix Frankfurter: But they would have to be now.

It couldn't be on the document itself.

Mr. Anthony Bradley Eben: That's right.

There would be no acknowledgment.

Justice Felix Frankfurter: And t cannot be decided on the record as it was produced at the trial because, then, this problem wasn't in existence --

Mr. Anthony Bradley Eben: That's actually right.

Justice Felix Frankfurter: Because it exactly wasn't in existent.

Mr. Anthony Bradley Eben: That's correct.

Justice Felix Frankfurter: Don't you say, as to one of the Jencks statute, that it is open to you to establish what couldn't have been established at the trial and what cannot be established from the document that, in fact, it was approved, is that your position?

Mr. Anthony Bradley Eben: I say, it might well have been established at the trial.

Justice Felix Frankfurter: Well, but it -- from this record, it couldn't have been established at the original trial because that was in nobody's mind.

Mr. Anthony Bradley Eben: That's right.

It was never there.

Justice Felix Frankfurter: Now, as to the next thing, whether it was a stenographic, mechanical, electrical, or rubber recording within the substantially verbatim recital, the Court went -- the Court of Appeals went on an examination of the document.

It answered that intrinsically from the document, is that right?

Mr. Anthony Bradley Eben: That's correct.

Justice Felix Frankfurter: And, whether it was right or wrong, assuming that procedure is to be followed, can be still establish by the document by those who have power to see the document.

Mr. Anthony Bradley Eben: Yes, I would concede that, except that the opposite result might well have resulted had there been a cross-examination of Belavan as to the circumstances under which he took the statement and how he tendered it to Chief Counsel Kennedy and what purpose Chief Counsel Kennedy wanted to use it for.

It seem --

Justice Felix Frankfurter: But a document may show on the face -- a document may show on its face that it was not a substantially verbatim recital.

The document may show that, and I'm not saying this does, but a document may show that it is not a substantially verbatim recital, may it not?

Mr. Anthony Bradley Eben: Yes, sir.

I did document for it, I presume.

Justice Felix Frankfurter: Yes, and -- or it may show the opposite, or it may be in doubtful territory.

Mr. Anthony Bradley Eben: Yes, and it is to the third view that I lean.

Justice Felix Frankfurter: Yes.

Mr. Anthony Bradley Eben: And I -- we urged that some other place in our brief.

Now, of course, I don't want Your Honors to think that we have abandoned the argument that they may have in fact been another written statement in view of the fact that the witness had said he believed he signed one, and that the Government had produced only, what they called, a general summary.

And, that was a question of fact for the Court of Appeals and they decided that this was the only one and they did that, as I said, purely on the faces of the Belavan affidavit.

Justice Felix Frankfurter: Well, wouldn't it be up to the defendant to lay the foundation, at least, for a conclusion that there was more than one document?

Mr. Anthony Bradley Eben: Well, it had been --

Justice Felix Frankfurter: After all, nobody is in a better position than he to --

Mr. Anthony Bradley Eben: It had been laid.

The record of the trial court, the printed record here shows that Mr.Carlin testified that he had given the statement and he believed he signed it.

Justice Felix Frankfurter: Well, that, to me, doesn't prove that there were two statements.

Mr. Anthony Bradley Eben: Well --

Justice Felix Frankfurter: You're raising a doubt, you're raising the suggestion of the plausibility or, perhaps, possibility that, because he thought he had signed something and a document is produced which isn't signed, that there must be in existence another document which is signed?

Mr. Anthony Bradley Eben: In view of the witness' testimony that he believed he signed one.

Justice Felix Frankfurter: Well, witness --

Mr. Anthony Bradley Eben: I say it's within the logical possibilities that there were two statements.

Justice Felix Frankfurter: Well, you had an opportunity to counter that affidavit, didn't you?

Mr. Anthony Bradley Eben: They -- there were no counter affidavits filed.

Justice Felix Frankfurter: Well, now --

Mr. Anthony Bradley Eben: The affidavits were --

Justice Felix Frankfurter: You had an opportunity to file some, didn't you?

Mr. Anthony Bradley Eben: No.

The affidavits were filed in the Court of Appeals after the brief for petitioner was there.

No counter affidavits were ever filed.

Justice Felix Frankfurter: Well, you weren't tr --

Mr. Anthony Bradley Eben: And, there was no way the counsel could know, really, without cross-examining.

Justice Felix Frankfurter: No, but you won't refuse an opportunity to file a counter-affidavit to the effect that the defendant's memory is strong or substantial that, if this document isn't signed, then there's must be in existence another document.

Mr. Anthony Bradley Eben: Well, I think we were already at that point --

Justice William J. Brennan: Well, how would --

Mr. Anthony Bradley Eben: May it please Your Honor.

Justice William J. Brennan: The defendant tell that anyway?

You're talking about Carlin.

The defendant has no knowledge as to what Carlin signed or didn't sign.

Justice Felix Frankfurter: That's correct.

Justice William J. Brennan: He was a Government witness, wasn't he?

Mr. Anthony Bradley Eben: That's right.

That's right.

Carlin was --

Justice William J. Brennan: How would you --

Mr. Anthony Bradley Eben: A Government witness.

Justice William J. Brennan: How would you know that?

How would you be in the position to find out without producing Carlin again?

Mr. Anthony Bradley Eben: In no fashion whatsoever.

Justice Felix Frankfurter: But you could file an affidavit saying that you rest on the affidavit of Carlin that he thought he'd signed it and they now produce something that wasn't signed and, therefore, probability exists that there must be another document.

Mr. Anthony Bradley Eben: I say that that is a logical possibility --

Justice William J. Brennan: Well, rely on that.

Justice Felix Frankfurter: But did you --

Mr. Anthony Bradley Eben: Mr.Justice Brennan points out --

Justice Felix Frankfurter: That's -- evidently, I'm not making myself clear.

I understand your argument.

I'm suggesting you made no suggestion to the Court of Appeals or you filed no affidavit to the effect that there was now produced a document which was not signed by Carlin.

Carlin had testified that he thought he'd signed one.

Therefore, there's probability that another document exists and, therefore, you want a chance to cross-examine.

Mr. Anthony Bradley Eben: Well, I -- I

Justice Felix Frankfurter: You can put all that in the affidavit.

Mr. Anthony Bradley Eben: In my opinion, Your Honor, that would have been repetitive.

The state of the record on Carlin's statement had already put the petitioners, the defendants in that position.

Justice Felix Frankfurter: Because they're repetitive, because the -- I hope your experience in life is better that mine.

A number of times, I think I had done something, when it turns out, I didn't.

It's very possible.

Mr. Anthony Bradley Eben: Well, I think, under the circumstances which --

Justice Felix Frankfurter: I thought even Carlin's testimony might be treacherous.

Mr. Anthony Bradley Eben: Well, it could be.

Justice Felix Frankfurter: And it remains to be treacherous.

Mr. Anthony Bradley Eben: But, it -- incidentally, the Carlin testimony was never subjected to cross-examination by the Government when they -- or, rather, to direct -- redirect when they took them back and stood.

Justice Felix Frankfurter: Probably -- they probably didn't know and, incidentally, they didn't know.

They wouldn't be --

Mr. Anthony Bradley Eben: Probably didn't care there.

Justice Felix Frankfurter: They didn't care.

At that stage, that wasn't an issue because there were no such statute and no Jencks decision. I'm suggesting you were then confronted in the Court of Appeals with an affidavit and a document and you could then have proffered to the Court of Appeals or ask them the opportunity to have the matter searched by cross-examination in the district court.

Mr. Anthony Bradley Eben: Well, I assume that they might have done that, in any event, I must concede that, on the record, there's --

Justice William J. Brennan: All right.

Mr. Anthony Bradley Eben: No such thing is charged.

Justice William J. Brennan: Tell me, Mr.Eben, I gather, you'd never seen the statement, had you?

Mr. Anthony Bradley Eben: No, I never had, Your Honor.

Justice William J. Brennan: And no one on behalf of defendant has ever seen the statement?

Mr. Anthony Bradley Eben: No defendant has ever seen it.

Justice William J. Brennan: Now, did you see the affidavit?

Mr. Anthony Bradley Eben: The affidavit --

Justice William J. Brennan: The Belavan affidavit?

Mr. Anthony Bradley Eben: The affidavits were made available to the appellants on appeal.

They became part of the record.

Justice William J. Brennan: And -- and was the significance to the affidavit argued in the Court of Appeals?

Mr. Anthony Bradley Eben: Yes, they were.

I -- I wasn't in the case at that particular time.

I've examined the briefs and there was argument on that --

Justice William J. Brennan: Well, in the affidavits --

Mr. Anthony Bradley Eben: --and the statements of it.

Justice William J. Brennan: -- in the affidavit, does there appear a statement that the sealed envelope with the statement in it contained a statement which was unsigned?

Mr. Anthony Bradley Eben: Yes, that's correct.

Justice William J. Brennan: It does.

What is it pointed out to the Court of Appeals that Carlin had testified at the trial that he had signed one?

Mr. Anthony Bradley Eben: I don't believe so.

Justice Felix Frankfurter: But it was in the record, wasn't it?

Mr. Anthony Bradley Eben: Yes.

I don't think it's in the record.

Justice Felix Frankfurter: Presumably, judges read records before they decide questions of facts.

Mr. Anthony Bradley Eben: As a matter of fact, the theory -- the theory of the -- the appellants in the Court of Appeals in the Second Circuit was to attack the -- the holding of the Court insofar as it held that this was not a substantially verbatim recital.

Now, we come to that -- that -- we come to the question now as to whether or not -- whether this was a substantially verbatim recital or not, was it not admissible under 18 U.S.C. 3500 and, if it was not admissible under 18 -- under that particular statute, was it not admissible under Jencks?

We have held -- we have argued here in our briefs that, and we support it by reference to the expressed language of the statute into the legislative history underlying the statute, that the procedure for producing documents, as outlined in the Jencks statute, is not exclusive at all.

Particularly, it appears from the Senate debates led by Senator O'Malley where they made very clear that they had in mind that if the rules of criminal procedure or any rule of court permitted the introduction of such statements or summaries, then they would be admitted pursuant to that rule or -- of court or to the rules of criminal procedure.

And, I point out to the Court, and we argue it extensively in our brief, that if the procedure, as outlined by the Jencks statute, is not exclusive, then under this Court decision in Jencks, it's clearly admissible whether it's a summary or whether it's hearsay, no matter what it is, if it reflects upon the events related by the witness at the trial.

I think, when this Court announced two rules of relevancy in Jencks, it was making that most clear.

As Your Honors will recall, you said that there is a rule of relevancy which governs production and then, subsequently, after the particular document is produced for the examination of the defense, then, the Court will rule upon relevancy form the standpoint of evidence.

Quite obviously, Your Honors would not have gone to the trouble of making that distinction if you had not had in mind, in the very first instance, that a non-admissible statement or report of a Government witness to a government agent might be admissible or might be producible in the very first instance without ever being admitted into evidence.

Otherwise, there'll be no reason for you to make the distinction, as I just pointed out.

So that, I say that, under Jencks, and we argue this, as I say, extensively that, under Jencks, at least from the standpoint of production, any summary by a government agent of what a witness told him is admissible or producible to the defendant in the first instance for such use, as this Court said, “on cross-examinations may further his defense.”

The Government's contention as of the statute and Jencks, both are based upon the same rationale that the only thing that is producible is a matter which might ultimately be admitted for impeaching purposes in evidence.

And, we say that, in the face of the language of this Court, that that cannot be.

If so, there would be no reason for Jenks, the rule would be much the same as it was prior to Jencks, and there'd be no reason for 18 U.S.C. 3500.

Now, we contend that a summary of what a witness told a government agent may be most useful to establish all of the things that this Court laid down as test of inconsistency.

Not only flat contradiction, as you will recall, but omissions, order of statement, difference in contrast, and so on.

Nobody on the petitioner's side proposes that such a document could ever be used for impeachment purposes and, following the rule of this Court, there is no question that once a witness had --

Chief Justice Earl Warren: Go ahead, finish your sentence.

Mr. Anthony Bradley Eben: That once a witness had made a statement and had been cross-examined on it, that it would be impossible to offer a hearsay statement of an agent as to the truth or falsity or the inconsistency of what the witness said, but the impeachment would follow through the mouth, presumably, of the government agent who took the statement.

And, there would be none of the hassles and harassments referred to here in the Government's brief under such circumstance.

Thank you very much.

We submit that this matter should be remanded.

Chief Justice Earl Warren: Mr.Treiman.

Argument of Albert H. Treiman

Mr. Albert H. Treiman: May it please the Court.

I was trial counsel in the original trial and I also appealed -- appeared in the Court of Appeals for the Second Circuit.

Now, I'd like to start off my argument by answering some of the questions that were put to my colleague.

First of all, this -- the question of Carlin's statement, we had never been given an opportunity to examine it.

We were never made aware that such a thing did or did not exist until after our briefs had been filed in the Court of Appeals, and it was in answer to our briefs that, for the first time, we were advised through the Government's briefs that there was, in fact, a statement filed with the Court of Appeals at that point and that the statement was barren of the requirements of 3500, and that the Government was relying upon or submitted that statement to the Court of Appeals for examination.

Up to that point, we never even knew whether such a statement existed except by the evidence that was submitted by the witness Carlin form the witness stand who had said he believed he had signed such a statement.

Justice Felix Frankfurter: Am I to -- am I to infer from what you've just said that there had been, before the Court of Appeals, an ex parte submission of a document by which you had not been notified?

Mr. Albert H. Treiman: That is exactly correct, Your Honor.

The only knowledge we had of the document whatsoever was when we received copies of the Government's brief in the Court of Appeals which submitted the fact that there was such a statement filed with the Court.

Prior to that, we had no knowledge whatsoever.

We have never even seen the affidavit itself, except that the copy of the affidavit appeared in the answering briefs of the Government.

Justice William J. Brennan: Now, when you discovered this from the Government's brief, what did you do then?

Mr. Albert H. Treiman: We argued in the Court of Appeals that it was improper for the Government, at that point, to submit an ex parte affidavit in support of the contention that no such document existed.

Justice William J. Brennan: How did you argue this, on oral argument or by a --

Mr. Albert H. Treiman: On oral argument, Your Honor, because the matter was submitted shortly before oral argument.

It was presented for us --

Justice William J. Brennan: Did you file a reply brief or anything?

Mr. Albert H. Treiman: I believe some of us had filed a reply brief, yes.

Justice William J. Brennan: Addressed to this --

Mr. Albert H. Treiman: That's correct.

Justice William J. Brennan: File?

Mr. Albert H. Treiman: At the very last moment, just before walking into the Court of Appeals to argue.

Justice Felix Frankfurter: Does the -- does the record show when and by what formality this statement -- this affidavit was submitted to the Court of Appeals?

Have we, before us, anything from which I can find on the date when this affidavit was submitted to the Court of Appeals as compared with the date of disclosure to you through the brief in the Court of Appeals?

Mr. Albert H. Treiman: To the best of my knowledge, Your Honor, it was submitted at the same time that the --

Justice Felix Frankfurter: Well, that makes a lot of difference.

I asked you the question.

I asked you --

Mr. Albert H. Treiman: I do not know the date, sir.

Justice Felix Frankfurter: I asked you whether I am to infer that there had been, before the Court of Appeals, for some time, an ex parte document of which you had notice only subsequently, and I evidently misheard.

I thought you said the answer to that was yes.

I'm bound to say that --

Mr. Albert H. Treiman: No.

Justice Felix Frankfurter: Would have shocked me.

Mr. Albert H. Treiman: No, I -- no, I believe that is not correct, sir.

I believe that the ex parte affidavit was filed simultaneously --

Justice Felix Frankfurter: But it wasn't ex parte --

Mr. Albert H. Treiman: -- with the Government's brief.

Justice Felix Frankfurter: -- if you were given notice of it.

Mr. Albert H. Treiman: Well, it was ex parte in this sense that it was made a -- a part of the record without our knowledge that it was going to be made a part of our record and it was submitted after we had --

Justice Felix Frankfurter: Well, that's true of --

Mr. Albert H. Treiman: -- submitted our briefs.

Justice Felix Frankfurter: -- that's true of every pleading.

There isn't an advance notice that a pleading will be filed.

I don't call that ex parte.

Chief Justice Earl Warren: Were you served copies of the pleading, of the affidavit itself?

Mr. Albert H. Treiman: We were served copies of the affidavit simultaneously with the brief.

It was contained in the brief --

Chief Justice Earl Warren: (Voice Overlap) --

Mr. Albert H. Treiman: -- in the answering briefs.

Chief Justice Earl Warren: In the brief?

Mr. Albert H. Treiman: That's correct.

And, that was the first knowledge we had.

Justice Felix Frankfurter: That, to me, is very important because I can -- I repeat, I would have been in deep shock if the Government permitted something to the Court of Appeals and it was before that court, before notice, at the same time the filing was given to the opposite side.

I would not call that according to the law.

Mr. Albert H. Treiman: Well, may I continue with the argument.

One of the contentions that we wish to submit is this, that the entire picture of the course of the trial must be taken to consideration as to the relevance of this particular incident as to Carlin's statement.

There were six defendants on trial.

Each represented by their own counsel.

As a result, we had agreed with the Government and with Justice Kaufman that an objection taken by one would be an objection covering all, unless one of the attorneys chose to take some other course of action.

This was done with the hope that it would expedite the trial, and I respectfully call to Your Honor's attention that this trial took six weeks to the day, from the date that the jury was poke -- picked, rather, to the date that the jury came back with a verdict.

And, it was hoped that, by following this particular course of conduct, we could expedite the trail rather than have the trial prolonged even further.

Therefore, when the counsel went into cross-examination, we were seated at the counsel table in the same order in which the defendants were named in the indictment.

Consequently, Lev, having appeared as number one defendant in the indictment, Lev's counsel sat as the first attorney to cross-examine the witness, and so on down the line, And, it was intended that, by following this orderly procedure, that there wouldn't be a repetition of having each attorney come into the same line of cross-examination if that line of cross-examination had already been covered by the attorney who had cross-examined just before he did.

Now, it is on that basis that when Carlin testified, and he was one of the first, in fact, probably the first material witness that was called to the stand, after having submitted various exhibits in evidence that were very lengthy and so forth, when he was called to the stand, the testimony that he presented was very material to the issues in this regard.

First of all, he was an accountant and he was not one of the parties involved in the partiular transactions that were later disclosed.

Now, when Carlin testified, he set the groundwork for what purported to be a conspiracy but, at the time of the -- rather, the period of time that he described did not affect the defendant Lev, did not affect the defendant Wool, whom I represented, because both Lev and Wool came into the picture in this Quartermaster setup which later became, commonly referred to as ASTAPA.

Approximately, a year later or some nine months later, in any event, any description of the events that took place in Carlin's testimony, preceded by some nine months where he discussed what was going on amongst Rubin and the partners, namely, Levy and Ades.

So that, when the point came up for cross-examination, there was nothing for us to cross-examine, when I say us, I mean counsel for Lev and counsel for Wool, because there was no mention of him nor would there be any materiality in cross-examining him.

But, in view of the fact that the Court had ruled that we could not examine any document until we can prove to the satisfaction of the Court that there was something contradictory between the testimony given by the witness on the witness stand and that which he had given in some previous document and, since we had already agreed on our procedures as to objections and exceptions taken and so forth, it then became a futility for us to come with each witness to make the same request again.

In fact, it even served to hurt us a little bit deeper than that because, when Carlin testified that he had in fact signed such a statement or be it that he believed he had singed such a statement and then we were denied the statement, certainly, the jury had a right to assume from that that he had, in fact, adopted such a statement and that, if the statement had been produced, it would have borne out exactly what he had testified at the time of the trial.

Justice Charles E. Whittaker: May I ask you, was the understanding between counsel and court that the objection is one which stands throughout --

Mr. Albert H. Treiman: That --

Justice Charles E. Whittaker: One stipulation?

Mr. Albert H. Treiman: It was in a form of a pretrial stipulation, Your Honor, yes.

Justice Charles E. Whittaker: The finding in this record here today?

Mr. Albert H. Treiman: I don't know.

It may be in the pretrial part of the record.

There was such a stipulation amongst all counsel.

Justice Charles E. Whittaker: It related to the conduct, objections only, do I understand?

Mr. Albert H. Treiman: It related to objections.

It related to, also, requests that were made.

In other words, if counsel number one who appeared for Mr.Lev made a request and that request was denied and then objection was made to the denial of the request, the objection went down the line for all of us.

Now, this appears in the transcript of the record.

I don't believe it appears in the record here.

But, in the transcript, it does appear that there was this agreement made amongst counsel.

Justice Charles E. Whittaker: With the Court?

Mr. Albert H. Treiman: With the Court.

In fact, at -- may I suggest, at the suggestion of the Court, in order to avoid the necessity of having each attorney pop up each time that a question was raised, so that we would only have a series of objections down the line, there were six of us sitting there, rather than proceed with the normally -- normal procedure of the trial.

We also stipulated further that, in the event someone opposed an objection, that is one of defense counsel, only in that even would he rise to speak to indicate that he was not a party to the particular objection.

Now, I don't wish to encroach on my colleague's further time and I will permit him to go into his argument, but I merely wish to clarify the issues that Your Honors brought up at this point.

Thank you.

Chief Justice Earl Warren: Mr.Sullivan.

Argument of John T. Sullivan

Mr. John T. Sullivan: Mr.Chief Justice and may it please the Court.

It was I who made the objection.

It was I who asked Carlin to produce the statement, and I would like to answer Justice Frankfurter very clearly that I don't think there was any skulduggeryon the part of the United States Attorney.

I have the utmost respect from Mr.Arthur Christy who tried this case, a very, very fine able young man.

What happened was this.

They -- I believe Mr.Christy said to me, call me, or sent me a copy of the affidavit.

It was virtually contemporaneous with the brief, Mr.Justice Frankfurter, so that, we did have the opportunity, if we wanted to, to make an application of some description to the Court of Appeals.

However, in view of the condition of the record, I saw no reason for doing that.

I had asked this witness Carlin whether or not he had been interviewed.

I had asked him whether he had given a statement.

He said “I believe I have.”

Now, there's one aspect of it that I think is most important at this particular point.

When I made that request, the first thing that the District Attorney said was that no foundation has been laid, and then, the Court, no foundation was laid even to ask the question whether he had given a statement.

Then, that was overruled.

Then, after that, when I asked for the statement, the District Attorney opposed on the ground that I had made -- laid no foundation.

Now, I urge the Court to consider the Gordon case.

I considered, at that time, myself that the rule in the Second Circuit was entirely erroneous and I couldn't understand why statements such as might be in the possession of the Government which were not state secrets, I know of no reason why we couldn't have them.

To me, it seemed co --incompatible with justice that the Department of Justice, the District Attorney can hold papers which you -- from you but you can't get them from him, so that, it was my sincere urging at that time that I be given.

And, I quoted the Gordon case.

Well, Judge Kaufman said not only would he give it to me, ut he wouldn't even look at the statement.

He said “now, I would like to know how I could possibly know whether there was an inconsistency in a statement that he wouldn't even look at himself or let me see.”

All this time, the District Attorney was continualing -- continually arguing as if there was such a statement.

I was clearly let off my guard.

Now, I don't think that Mr.Christy did that deliberately.

I'm sure he didn't, knowing him so well, and I state that in my brief.

But, I was completely led astray.

I would have made that objection.

I had discussed it with my -- with my co-counsel.

I had discussed it with Mr.Lev's counsel, with Mr.Treiman.

I had intended to get every statement.

I knew that there were many statements.

This case had started with the McClellan Committee.

There was hardly a law enforcement bureau that wasn't in this, and I was very, very, very anxious to get those statements and I believe that I was deprived of those statements by things which were not exactly right.

Once again, I say no real active intention on the part of the District Attorney.

If Your Honor please, when I argued, and I went back again to Judge Kaufman, I argue the proposition with him again and he delivered himself of that opinion.

So that, I felt that if were to continually assert the proposition that I want this statement, I have a great respect for the judge who is sitting in the case.

As a defense lawyer, I do not want to seem disrespectful in any way and I don't think it helps the cause of your client by doing that.

So, then, I came to the conclusion that I would have to drop that, although I felt that Judge Kaufman was absolutely wrong about his contention.

Justice Felix Frankfurter: I do -- I don't see what more you could have done.

Mr. John T. Sullivan: I don't see either.

In any event, I could have if you -- pardon me, Your Honor.

Now, if Your Honor please, by virtue of the fact that the Solicitor General has brought into this case the question of harmless error and has made a lot of comments in his brief, characterizations which I think are pretty much fortuitous about the facts.

I think, I can assist Your Honors greatly by giving you the facts as I know them.

I believe I know them better that anybody.

I took more part in this trial than anyone.

I open to the jury or I closed.

I did the whole job there and I think that I know the facts as well as anyone.

What actually happen in this case was, you had a little company called “Bonita” which was in Puerto Rico.

Bonita had two partners, Levy and Ades.

Levy and Ades came from the Middle East and they had been there.

Ades had been from Brooklyn and he went to Puerto Rico.

So, they had this little embroidery business and they were going nowhere, and they met Marvin Rubin, another young fellow from Brooklyn.

And, Marvin Rubin then said the he could get them business.

He have had some experience in procurement matters, so that they got together and they started to try to do something with this enterprise in Puerto Rico.

Now, the only thing that distinguished the enterprise in Puerto Rico was, in Puerto Rico, you got a low-wage scale and the people down there can handle the needle business pretty well.

So, that was all there was to that enterprise.

It was just a little kitchen table enterprise that didn't amount to anything.

And, so, Rubin went in and Rubin got contracts.

Now, I'm giving you these facts to show you that characterization, such as the Solicitor General makes to the effect of overwhelming testimony, that Carlin was only secondary.

This, if Your Honors please, is far from the truth.

These were very close questions of fact.

As witness to the fact that one defendant was acqui -- acquitted, as witness to the fact that the jury was out for an extended period of time going into its second day, as witness to the fact they came back 14 times for instructions, as witness to the fact they asked that the cross-examination of Carlin be read.

So that, Carlin's testimony was not secondary.

It was very critical.

It was the foundation stone of their case.

Now, if Your Honors pleas, there were only three witnesses for the Government.

Sure, there were 27, but there were only 3 real witnesses.

There was Levy, the former partner of Ades, the man who was dissatisfied because he wasn't taken on the white hat contact.

There was Addison.

There was Porreca, the Chief Inspector, and there was Carlin.

Carlin was the -- one of the main stones of this entire case and it cannot be stated by the Solicitor General or any one else that his testimony was secondary, that it was not anything that had a bearing on the issue.

The things that they did, naturally, they try to do everything they possibly could with the inspection service.

They try to get all the favors.

They could, with all these contractors, operate this way.

They naturally didn't go in and insult the inspectors, so that, there came a time that a great white hat procurement was coming up.

This was a very big contract and this, of course, could be manufactured in Puerto Rico much more cheaply than any where else in the United States.

By this time, Mr.Rubin, the able, eager promoter, Mr.Rubin was a promoter.

He decided at that point that if he could -- he had met Harry Lev.

Harry Lev was a big tycoon of hat manufacturing in Chicago and he could get Harry Lev to take that contract, there c -- they could make a lot of money down there.

Well, all this happen.

Harry Lev took the contract.

They built a plan.

Harry Lev was a very great manufacturer of hats, and Harry Lev had so -- save the Government, I would say, millions of dollars over the years with his methods of manufacturing hats.

There was no real depriving of the Government of any money here.

This case was built up on the basis of the McClellan hearings.

This was the very first big publicity that that Committee had.

Out came the Lev case.

Mr.Lev was an object of quite a lot of interest due to his personal characteristics and, as result of that, this case came to pass.

And, so then, they started reaching out to get this piece of evidence and that piece of evidence and put a twist on one thing.

And, I'd like the Court here, Court's attention to one particular thing.

There was a contract called the Wollman contract.

They stated why, due to improprieties, Mr.Rubin had caused the Wollman contract to be canceled and he took it over.

Justice John M. Harlan: Can I make an inquiry?

What is all this directed to?

I understand --

Mr. John T. Sullivan: This is directed, Judge -- Justice Harlan, to the Solicitor General's statement of the overwhelming proof.

I just want to --

Justice John M. Harlan: Anything that's up here is that Jencks issue.

Mr. John T. Sullivan: That's correct.

Justice John M. Harlan: What's all these got to do with it?

Mr. John T. Sullivan: Harmless error, if Your Honor please.

The Solicitor General's brief, when you see the Solicitor General's brief, you'll see it largely argues on the overwhelming proof and on the harmless error, and I -- the only reason that I saw fit to inject these facts is because of the fact that those statements have a name.

However, I say to Your Honors, in conclusion, that I agree with you that it probably is something that is not really an issue under the order that this Court has made, but I say that there was no -- that it could never be cured under harmless error statute, what transpired here.

In this very close case, as a result of the decision of the district court and not giving me access to the -- to the statements of the Government witnesses, which surely were in existence, if the Court please, there can be no doubt that there were many, many statements in existence with respect to all of the Government witnesses, particularly, the three critical Government witnesses Porreca, Levy, and Carlin.

So that, I assure the Court that, from the standpoint of harmless error, I feel that even though I submit that harmless error would not overcome the doctrine of the Jencks case, I say that it isn't here for this Court to consider because this is not an incident where harmless error could ever result in a decision by this Court.

Justice Charles E. Whittaker: Mr.Sullivan, for my understanding, may I inquire whether there was any statement shown to be in existence by any other person than Carlin be demand -- a demand for which he made and that was not complied with?

Mr. John T. Sullivan: Mr.Justice Whittaker, I did not make any further request for any further papers in view of Judge Kaufman's emphatic exposition of his understanding of the law.

Justice Charles E. Whittaker: You made a request for a statement that Carlin said he thought he'd made, and that's the only one, isn't it?

Mr. John T. Sullivan: That's correct.

Justice Charles E. Whittaker: (Voice Overlap)

Mr. John T. Sullivan: Now, if the Court please, with respect to the action of the Court of Appeals in rendering a decision which held that, because of the enactment of the supervening statute, that it was harmless error.

I state that the affidavit which was submitted, as my colleague, Mr.Eben, pointed out, in the affidavit which was submitted was most equivocal in stating whether a -- in stating whether or not what had been given was a verbatim statement.

What Belavan stated was that he had interviewed the witness and that he, thereafter, came back and dictated a memorandum.

And, on the basis -- and that he submitted that memorandum to the Chief Counsel Robert Kennedy and his statement was clearly to the effect that he did not know whether or not -- he did not know whether or not it was substantially verbatim.

He said it was just a general -- general statement about it, but it seems to me quite obvious that if Belavan and Cool were there to see Carlin, they were there to see him to get a statement from him.

To get Carlin's version of what had transpired.

To ask Carlin's -- Carlin questions.

And, it seems to me that, to go off on the technicality, this is not a verbatim recording.

This is not a verbatim transposition of what he said.

Affords the law enforcement agencies an opportunity to merely put a heading on the -- the bottom of -- on the top of one of their reports and say “memorandum to so-and-so,” and then it doesn't become a verbatim recording.

I say that if that particular part of the statute is upheld, it's clearly unconstitutional.

It is not due process.

Justice John M. Harlan: Unconstitutional on what ground?

Mr. John T. Sullivan: Unconstitutional on the grounds that, by virtue of this trick or devise, they have prevented confrontation and cross-examination, Justice Harlan.

I say that the sacred thing, the way every defense lawyer knows that cross-examination is your greatest weapon.

And, I say that he's limited cross-examination for no reason.

There is no state secret involved.

There is no possible reason why the Department of Justice or the Prosecutor should, after their witness has testified, should withhold from the defense a statement which does not reveal some secret of the Department of Justice.

It's imposing a hardship, a handicap.

It does not get at justice at all.

It defeats justice.

If I had a -- If I, as defense counsel, have papers in my possession, I cannot resist the subpoena of the Department of Justice.

They will get my papers if they want them, but I say that that is definitely an unconstitutional abridgement of the right of cross-examination which, I submit to this Court, is probably the greatest defense, the greatest weapon that a defendant has at his command to defeat an unjust indictment.

The c --

Justice Hugo L. Black: How do you say that it violates the constitutional --

Mr. John T. Sullivan: It's -- I say --

Justice Hugo L. Black: Is he compel -- the defendant should be allowed to call witnesses in their behalf, to be confronted by witnesses.

How did you say it violates it?

Mr. John T. Sullivan: I say that if the Prosecutor has in his possession a statement of a witness whom he has put on the stand, if I cannot get that statement or the statement of someone who has questioned him, then my cross-examination is limited.

I say that justice is defeated by that method, in accordance with the ruling of the Jencks case.

Justice Hugo L. Black: Do you argue that you have a right to summon witnesses to bring papers, as well as to summon witnesses for the defendant?

Mr. John T. Sullivan: I say that I have a right to subpoena those papers.

Once I find they are in existence.

Once I determine that there is a statement in existence by cross-examination of the Government witness --

Justice Hugo L. Black: Even if the witness may decide it indeterminately.

Mr. John T. Sullivan: I determine it --

Justice Hugo L. Black: This is the only constitutional question you've raised.

Mr. John T. Sullivan: The constitutional question I raised, Justice Black, is that, once I have learned that there is such statement on cross-examination --

Justice Hugo L. Black: Why do you have to learn it?

You mean, the Court has to know that your summon does not --

Mr. John T. Sullivan: What is that, Justice Black?

Justice Hugo L. Black: The Court has to know that your summon does not prove it.

It doesn't make a difference how you learn it or present it if you had --

Mr. John T. Sullivan: I don't know --

Justice Hugo L. Black: If you have anything that's on the constitutional point.

Mr. John T. Sullivan: I don't know.

Justice Hugo L. Black: The constitutional protection of a defendant to summon witnesses in his own behalf, is that --

Mr. John T. Sullivan: Correct.

Justice Hugo L. Black: What you're raising there?

Well, to summon the witness is all you son ask, does that mean that he can summon witnesses to bring papers that are known to be relevant or have reasonable ground to believe to be relevant?

Mr. John T. Sullivan: Yes, he can.

Justice Hugo L. Black: Without regard to cross-examination, I suppose that has nothing to do with that judgment.

Mr. John T. Sullivan: That may -- that's entirely true, Justice Black, but the cross-examination is the means whereby I learn whether or not they are in existence.

I dis -- I -- when the Government puts a witness on the stand, I learn that he has given a statement.

That's when I learned it.

I don't know it before because I do not have access to the Government's witnesses.

I could subpoena them and put them on the stand, but --

Justice Hugo L. Black: How does that particular part of your argument come within the constitutional provision that authorizes the defendant to summon witnesses in his behalf?

Mr. John T. Sullivan: If the Court please, the Sixth Amendment to the Constitution provides for cross-examination and confrontation, as I recall it.

Justice Hugo L. Black: Then, you go to confrontation.

Mr. John T. Sullivan: Yes.

I -- I don't say that it stops me from serving a subpoena.

I do say that, after I have learned of the existence of that, I might subpoena the F.B.I. to produce a record.

I put -- could have served such a subpoena, except that the Government does not respond to subpoenas.

Justice Hugo L. Black: Well, if it were known, absolute unknown, that the evidence is very relevant for a defendant, what position do you take on evidence that the constitutional provision that authorizes you to summon the witness and give a testimony on his behalf?

Mr. John T. Sullivan: I say, that --

Justice Hugo L. Black: In a criminal case.

Mr. John T. Sullivan: In a criminal case, that is a limitation and an abridgement of my right to be -- of -- for the evidence to be made available to me.

Justice Hugo L. Black: And?

Mr. John T. Sullivan: The statement, I mean.

I'm afraid I'm not following, Justice Black, very well.

Justice Hugo L. Black: Well, I understood you were claiming that it violates the constitutional protection and I'm trying to find out which one, in your argument.

Mr. John T. Sullivan: Well, I think it certainly violates the Constitution on the Fifth Amendment as to due process.

Justice Hugo L. Black: Well, that --

Mr. John T. Sullivan: I also say that not to permit -- not to order that statement to be produced to me is a limitation of my cross-examination.

It's a limitation of cross-examination, and I say that cross-examination is involved and is included in the time of confrontation.

Justice Hugo L. Black: Do you treat confrontation as including --

Mr. John T. Sullivan: Including cross-examination.

Justice Hugo L. Black: Cross-examination.

Mr. John T. Sullivan: I guess that's my answer to your question.

So that, when the Court of Appeals affirmed and said that, because of the supervening statute and because of the affidavit, I conclude my argument by stating that that, once again, deprived me of a very, very, very, valid right.

I wish to amplify that to some extent.

When I was informed -- when I was informed by the witness that he believes he had signed a statement, and when the District Attorney led me further into the morass of that belief that there was such a statement, and I then went -- had the colloquy with Judge Kaufman and argued the proposition, I believe, at that point, that I had been given a decision, a clear-cut decision.

I -- I considered that the question on the issue of whether or not I was entitled to that paper, to that statement, had clearly been decided and there was not point to my repeating it.

But, I found that, through the District Attorney having led me into this mistake, that, of course, I didn't have a clear-cut decision.

But then, the Court of Appeals took the affidavit and considered the statement against me.

I was defeated in both places by what I considered to be completely extrajudicial actions.

I do not think the Court of Appeals has any power to take such an affidavit, particularly in the view of the circumstances of this case.

And, in conclusion, I can only say that it was a very, very close issue of fact in this case.

It was r -- extremely close and that, if I had been able to get the statements, if Judge Kaufman had even expounded the law, as the Second Circuit understood it at the time, I think that it would have made a very big difference in the result of this trial.

If he had given me the understatements, it's my belief that these witnesses, the three main witnesses, I want the Court to consider who they were.

One was an accomplice, Levy.

He was unindicted, clearly an accomplice.

The other was Porreca, who said he took a bribe.

The only other witness that the Government submitted that really bore on the critical issue was the witness Carlin, and the witness Carlin was the very first witness.

He was a certified public accountant.

He was a witness who was, well, he was not an accomplice.

He couldn't be held to be guilty of the crime.

And, when the jury came back and asked for his cross-examination to be read to them again, it shows the critical nature of his testimony, and I endorsed what Mr.Treiman had said with respect to the objections.

Judge Kaufman really streamlined this trial by stipulations and pretrial conferences.

It was a very long trial, and we did agree to do these rather unusual things in the line of the stipulations and limiting objections, and so forth.

Well I might also add, and I -- it's rather with some hesitation that I say this.

I say that I do not think that the record will show that these defendants received a fair trial.

I believe, and I stated in my brief in the circuit Court of Appeals, that it was, to me, obvious throughout, at least I felt that way, possibly defense counsel always feel that way but, I felt that the Court was really not giving me the fair trial I think I was entitled to and was reaching out for the conviction.

I think the record shows that.

Thank you very much for your attention.

Chief Justice Earl Warren: Mr.Davis.

Justice Hugo L. Black: Mr.Chief Justice and may it please the Court.

As the Court knows, this is the first of the series of six cases, all involving, to a greater or less extent, demands for production of certain kinds of documents in the hands of the Government.

Because the Court has allotted a greater period of time to this case than to the succeeding cases, I shall try to lay the groundwork for all the cases by discussion of the so-called Jencks Act, 18 USC 3500, as well as our understanding of the Jencks decision, as well as to try the deal with this particular case which is now before the Court.

I believe it would be helpful for me if I may just summarize very briefly some of the differences between this case and the succeeding cases so that the Court might have it in mind as the series progresses.

This case, as it's been pointed out, is a trial prior to the Jencks decision.

It involves what the Government claims and the Court of Appeals have found was a summary of a witness' testimony.

It also involves a claim by the Government that the refusal to admit -- to produce the document, the summary, was harmless error.

Involves a document not by one of the investigative branches of the executive government -- Executive Department, but a Senate committee investigation.

Justice Felix Frankfurter: Have you any light as to the member of three Jencks cases that are before courts of appeals that's being held there or before us or will be before us.

Argument of Oscar H. Davis

Mr. Oscar H. Davis: Well, there are, I think, two before you in addition to this one.

Justice Felix Frankfurter: That is pre --

Mr. Oscar H. Davis: Pre-Jencks Act cases.

Justice Felix Frankfurter: Pre-Jencks --

Mr. Oscar H. Davis: Pre-Jencks --

Justice Felix Frankfurter: Pre-Jencks decision as to trial court, post-Jencks decision in the Court of Appeals, post-Jenks statute in the Court of Appeals.

Mr. Oscar H. Davis: I know of, I think, two that are before your Court.

I don't know what the status in the Court of Appeals is.

Now, the next case, the Valyermo case, is a case which was tried after the Jencks decision and after the Jencks statute, and it involves, again, a claim that what was denied production was a summary of a part of the Government witness' testimony.

There was also a claim in that case that if the -- if the refusal of the production of the document was error, it was harmless error.

The third case, the Rosenberg case that comes from the Third Circuit is also a post-Jencks Act and post-Jencks decision case.

It was tried under the Act.

In our view, and Ms. Rosenberg for the Government will explain it further, the documents which are involved in that case are wholly peripheral because the trial judge said that he went beyond the statute to even give summaries.

So that, in our view, what is involved there are wholly peripheral documents from the files of the Government.

And, that case does involve the F.B.I., the Palermo case which is an income tax case.

The Palermo case would be the next succeeding case.

It involves the Internal Revenue Service.

Then, the third and fourth cases, the Pittsburgh Plate Glass case and the Galax case, involved grand jury testimony which is all to produce grand jury testimony.

As to which, the Jencks Act is tangentially relevant but not directly on point.

And, the last of these cases, the Scales case which, of course, involves wholly different and very important issues, also has in it a question arising under the Jenks Act because the retrial of Scales was under the g -- was after the Jencks Act and, therefore, under the Jencks Act.

And, it involves the question of the excision from documents which were produced to the defendant and his counsel, parts of the documents which were thought by the Government and trial court and the Court of Appeals to be irrelevant.

With that summary statement of the -- of these group of cases, I come now to this case and I think it would be very, very helpful if I set forth before the Court, a little more directly than has been done, the type of facts that there were in this case.

Now, of course, I'm not going to argue the sufficiency of the evidence.

That is not before the Court, but it has a very, very direct bearing on the impact of the denial of this document relating to Carlin on the three defendants in this case to know exactly what this case was about.

As has been pointed out, quite fairly, this is a case involving a fraud in procurement involving the Quartermaster Corps in -- the so-called Quartermaster Corps Department in New York ,in 16th Street in New York.

It involves two separate types of procurement, and this is terribly important because the petitioner Lev is involved only in the second one of these procurements.

As to which, as I shall point out in detail, Carlin testified nothing at all, and as to which Judge Kaufman, many times, directed the jury not to consider any testimony as to petitioner Lev.

I shall try to spell it out --

Justice Felix Frankfurter: Which I infer that the judgments are controlled by same considerations.

Mr. Oscar H. Davis: They may not be controlled by that.

Justice Felix Frankfurter: They're not.

Mr. Oscar H. Davis: That is exactly right, Mr Justice.

Now, the two types of procurement that were involved was, first, a series of three contracts for garrison caps, these little caps that soldiers and airmen wear.

That was -- those contracts were left to the Bonita Company, the Bonita Originals Company, as to which, Carlin -- for whom Carlin was the accountant for a period of about nine months in the beginning of 1952.

His testimony was solely as to the B -- to the Bonita contacts and contracts with the Quartermaster Corps.

He -- he did not mention the word or the name of Lev.

He said that he had no knowledge whatsoever of the white hat procurement, which is the second one that I'm about to come to.

As to which, Lev was the dominant factor.

Now, the second procurement was the white hat procurement.

They were white sailor hats. It was a procurement of 7 million white sailor hats, which -- for which, Lev and his companies had the contract.

Now, that did not come about until almost a year after the garrison cap contracts.

It started about the beginning of 1953 which was about a year later, long after Carlin, the witness in controversy, had left the entire transaction.

He had left the Bonita Company and had nothing to do with it.

Now, it is also, as I stress because it is terribly important that we believe at least as to petitioner Lev, that throughout the trial -- throughout the trial, Judge Kaufman made it absolutely clear that all the testimony relating to the Bonita Company, that is, the garrison cap contracts, was not to be considered as against petitioner Lev because he was not involved in that.

And, throughout his charge to the jury, he made it equally clear.

In fact, when the jury came back and asked some questions which, to his mind, indicated that there might be some doubt in their mind as to that, he repeated again that none of the Bonita testimony was to be considered as to Harry Lev.

And, I repeat again that the testimony of the witness Carlin was wholly and solely relating to the Bonita contracts, the garrison cap contracts, and had no relation whatsoever to the white hat procurement, the sailor hat procurement with which Harry Lev was related.

Now, it has been indicated, but I think not brought out clearly for Your Honors, that this was a long trial.

There are 3,600 pages of testimony and the entire transcript to the record which is on file in this Court is over 4,000 pages.

There were 27 Government witnesses and a number of defendant witnesses, including testimony by the defendant Rubin who is a petitioner here and other defendants who are not in this Court at this time.

I would stress, too, because it's important, at least on our argument upon this area, that there was an extraordinary amount of testimony as to bribes and doing of pecuniary favors by the defendants in these cases before the Quartermaster Corps.

The witness Carlin was, as we say in our brief, and I shall try if I have time to point it out, a wholly secondary witness.

The witness Levy who was involved in the Bonita conspiracy and also had knowledge of the white hat conspiracy was a very detailed witness as to all the elements of the -- both aspects of the conspiracy, and he detailed the large number of bribes and favors which were done.

There were -- in addition to the witness Levy, there were government officials who had been themselves participants in this entire conspiracy.

There was not on the full record the Chief Inspector who did favors for these people as a result of a bribe of $1000 by Harry Lev and other moneys by the and -- by the other defendants.

But, there were inspectors who testified, as well, of what they did in this relationship.

I say this because I want to make it clear that, in the Government's view, this -- the testimony of Carlin was very secondary.

He was one of the witnesses.

He was actually the second witness.

But, as the trial progressed, the weight of the testimony was overwhelming and I think I should say right now, and I'll try to come back to it, that we think this is a case in which there is perfectly well applicable the language which the Court used a few terms ago in the Lochlet case.

This is a record that barely shrieks of guilt.

There was also testimony, and this is important, by third parties, in addition to Carlin, the bookkeeper in the establishment of the Bonita Company who corroborated much of what Carlin said, other people who were wholly unconnected with the conspiracy who corroborated what was done and, finally, there were admissions by the defendants of payments which, of course, they thought were not bribes but mere personal favors or for other purposes.

But, there were admissions by the defendant of clear payments to the government officials involved.

Now, with this background, I come to make a summary statement, first, of what I hope to present to the Court in my argument.

I think I may have made it clear that, in our view, the denial of the production of this document relating to Carlin has -- had not relation whatsoever to the petitioner Lev and, therefore, regardless of what might be done as to the other petitioners, the petitioner Lev's conviction cannot be reversed or any action taken with relation to that.

As to petitioner Wool, Carl --

Justice Felix Frankfurter: And is that the only question as to Lev before us?

Mr. Oscar H. Davis: No, sir, because if we are right on all the other, that might be the most narrow ground as far as petitioner Lev.

But, even wholly apart from that, we will of course make the argument of what was done here by the Court of Appeals was perfectly correct.

Justice Felix Frankfurter: No.

My question was whether petitioner Lev made any other error, except for non-conduction --

Mr. Oscar H. Davis: He did in his petition --

Justice Felix Frankfurter: Yes, but he --

Mr. Oscar H. Davis: But the Court limited, as to this, that that's all --

Justice Felix Frankfurter: Before us, the only question as to him is the non-conduction of sending it to your colleagues.

Mr. Oscar H. Davis: That is right.

Justice Felix Frankfurter: All right.

Mr. Oscar H. Davis: We will also try to establish that this trial was not, as counsel have tried to say, permeated by the refusal of Judge Kaufman to allow the production of this testimony.

My reading, Mr.Justice Whittaker, of the pretrial discussion on the objections is precisely the opposite of that of counsel for the petitioners.

My reading of the pretrial discussion about objections was that the then-counsel for Lev made some suggestion about one objection by one defendant standing for all and there were queries as to that by the other defendants.

And so, Judge Kaufman said "alright, we will go ahead and have every defendant make his objection as he sees fit," and that is actually what happened in this trial record.

There are indications even in the printed record and the unprinted transcript which I have, in a large part, read and the rest scanned is just -- is filled with theoriative objections by the various counsels all along the line -- of various counsels for the various defendants all along the line, so that --

Justice Charles E. Whittaker: May I --

Mr. Oscar H. Davis: Pardon?

Justice Charles E. Whittaker: May I ask was it confined to objections in each defendant that was partly the demand for production?

Mr. Oscar H. Davis: As I recall the discussion, there was no agreement as to -- a demand for production as to -- by one defendant standing for all.

The discussion was as to objections to testimony, and that was the course of the proceeding.

Justice Hugo L. Black: May I ask you, if you are going -- intend to take up, during the argument, any of these cases?

Are you suggesting that what he's done is either a violation of the Constitution or comes so closely within that range that the Court should consider it in construing?

I mean, with reference to the two provisions of the Sixth Amendment, one, that a defendant in a criminal prosecution has a right to be confronted with witnesses against him and, two, they have to consult your office or obtain reference to it.

I ask that on this basis.

They claim they've been denied the right of cross-examination.

That may or may not.

So, answer this.

The other is, I suppose, that -- if you decide this question -- assert yours is not in here, you decide you've got proof.

I suppose that if the witness working for the Government or the Department of Justice or someone where a man was charged with murder and he could be compelled to come without claiming any privilege.

I don't suppose there'd be any doubts there, would you?

Mr. Oscar H. Davis: No, sir.

Justice Hugo L. Black: That being the case, that he is someone to bring certain papers that are remedy in a criminal case, would a refusal to deny him the benefit of the -- on the ground that privilege come in contrary to the constitutional provision which give them the right to the compulsory attendant provision.

I don't ask you to do it now, but I'll -- I just hope, before the case is over, that you will read that.

Mr. Oscar H. Davis: Yes, Mr.Justice Black, I do intend to but, following the -- the Court's injunctions, I think, perhaps, that my first obligation is to discuss the so-called Jencks Act because --

Justice Hugo L. Black: I have no doubt about that.

Mr. Oscar H. Davis: -- if -- if we are wrong as to that, then we don't even reach any constitutional issue.

Justice Hugo L. Black: I ask you that on the basis --

Mr. Oscar H. Davis: Yes, sir.

Justice Hugo L. Black: -- that probably, in construing the Jencks rule of the statute, that the problem might come up as to whether the construction one way might amount to the denial of rights guaranteed by the Sixth Amendment.

Mr. Oscar H. Davis: In that connection, if -- if you will allow me just to state, in summary fashion, what our view is on the Constitution, I think I will then come to it at greater length.

Justice Hugo L. Black: I have to ask.

I don't care to rush you.

I just --

Mr. Oscar H. Davis: I understand.

Justice Hugo L. Black: Why the cases were up --

Mr. Oscar H. Davis: But I'm --

Justice Hugo L. Black: And you're getting to it.

I just hope that --

Mr. Oscar H. Davis: Yes.

Justice Hugo L. Black: --during your time, you'll discuss it.

Justice Felix Frankfurter: Would you -- would you -- before you embark on your coherent discussion, if you're allowed to, do you take care of a suggestion that was made that this is a judge-handled statute that the Government can be compelled that they -- the defendant can be compelled to produce documents if the Government can't?

I can't understand that.

Mr. Oscar H. Davis: Well, no, sir.

I should think that this statute is exactly the other way.

The Government can be compelled to produce statements which the other side can't be compelled to produce under the --

Justice Felix Frankfurter: Alright, don't argue it.

Mr. Oscar H. Davis: Yes, sir.

Justice Felix Frankfurter: I just wondered whether -- what there was to that Act.

It's all mysterious to me.

Mr. Oscar H. Davis: I had not heard it before.

In summary, Mr.Justice Black, our position is that Congress has the right to decide that a non-verbatim statement or that statums -- statements which cannot appropriately be attributed to the witness because they are not approved by the witness or adopted by the witness or not signed by the witness or not substantially verbatim recordings of what the witness has said are not relevant documents and, so --

Justice Hugo L. Black: Then why -- I don't want to get in and argue with that bit, but does that necessarily always follow?

Many witnesses.

There's someone to bring papers that are relevant to criminal cases for defense but not prepared by the witness.

Mr. Oscar H. Davis: That's right, but it w -- for the -- they can't be t --

Justice Hugo L. Black: You're talking now about the cross-examination?

Mr. Oscar H. Davis: Yes, that's right.

But, it has never been thought, for instance, that a witness can be compelled to bring notes that he may, in advance of his own, not as a result of discussions with any government agent or not, just notes that he made for his own use in the course of the -- remembering what happened, which are certainly, in the broadest dictionary sense, relevant but they are not relevant in the legal sense.

I shall hope to come back to that.

Also, Mr.Justice Frankfurter, if I may get one thing out of the way, although, I think it is now clear.

The Government's brief in the Court of Appeals contains printed reproductions of the two affidavits, one of the Assistant United States Attorney and one of the Senate Investigator.

And, a footnote in the Government's brief says “the end of this brief are printed these exhibits which are the affidavits, and the original would be handed up to the Court at the time of oral argument, so that, it is quite clear that the affidavits were not made available to the Court of Appeals prior to being made available to counsel for the petitioners.

The significant part, as far as this case is concerned, and I shall say at this point, I forgot to mention before, that the Rosenberg case, the third of these cases, is the only one that involves any question of pretrial production -- pretrial production.

And, Ms. Rosenberg for the Government will deal with that in that case.

As far as this case is concerned, the significant portion of the statute has already been brought out by Justice Frankfurter.

It is on page 6 of the Government's brief.

It's the portion labeled “subsection (e),” and I won't take the Court's time to go over it.

It seems to us quite clear, as the legislative history reveals in great detail, that the purpose of this provision was to per --to require the Government to produce only those statements for which the witness is said to be fairly responsible, which were his statement.

And, therefore, which -- for which -- which could probably be used in examining and cross-examining him and that, contrary-wise, the purpose of the provision of the statute was not to require the Government to produce other types of documents which could not fairly be tied to the witness, which could fairly -- not fairly be said to be the statement of the witness.

Now, in our view, this is what the Court held in the Jencks case.

In the Jencks case, the Court had before it some written statements which were clearly the statements of Matusow and Ford, the crucial Government witnesses involved in that case.

Justice William J. Brennan: Are you sure about that?

Mr. Oscar H. Davis: Pardon?

Justice William J. Brennan: Are you sure of that?

Mr. Oscar H. Davis: I'm not?

Justice William J. Brennan: Are you sure of that?

Mr. Oscar H. Davis: That the Court had before it the written statements?

Justice William J. Brennan: It had the wit -- written statements of Matusow, but what about --

Mr. Oscar H. Davis: Ford, yes, you're right, Mr.

Justice William J. Brennan: How --

Mr. Oscar H. Davis: There were no --

Justice William J. Brennan: How do you differ the statements of Ford from the statement we have here?

Mr. Oscar H. Davis: The Government made no claim in those cases and I have --

Justice William J. Brennan: So that I'm --

Mr. Oscar H. Davis: Start --

Justice William J. Brennan: The statement, was there any difference than --

Mr. Oscar H. Davis: Yes.

Justice William J. Brennan: Other than their character was?

Mr. Oscar H. Davis: Yes.

They were not summaries of the type of this -- of this statement here.

They were, as far as the Government was concerned, pretty substantially verbatim recordings of what Ford had told the government agents, the F.B.I. and what Matusow, because there were some oral statements as to Matusow, too.

The Government made no claim whatsoever that those were not properly attributable to Ford and to Matusow, a claim that we do make here and that we make any other case.

Justice William J. Brennan: Well, did Ford ever see the statement?

Mr. Oscar H. Davis: As far as I know, I don't know whether he did or not but I do know, by having check the Government's briefs and the documents that we filed in this Court at the time of the argument, I don't recall the oral argument, that the Government never made any claim that the -- that the statements were not fairly attributable to those two witnesses.

Justice William J. Brennan: Well, did Ford himself make the statements that we --

Mr. Oscar H. Davis: Did he?

Justice William J. Brennan: Did Ford himself make the statements that we had before us in --

Mr. Oscar H. Davis: No, they were recorded by the F.B.I. but, as the statute itself says, a substantially verbatim recording of an oral statement is properly attributable to the witness, and this is the position that the Government took or the position that the Government assumed with respect to those statements in that -- in that case.

And, also, in the companion cases of Scales and Lightwood, I think, there were written statements in each one of those, too.

But, that -- and our understanding of the holding of the Court as to that is that the Court assumed, one, that the statement were relevant in the sense that they touched upon the testimony of the witness and were n -- didn't contain irrelevant matter and the Government didn't claim otherwise and, two, that they were recordings by the F.B.I., faithful recordings by the F.B.I., of the oral statements made by those two witnesses.

Chief Justice Earl Warren: A recording, you mean mechanical recording?

Mr. Oscar H. Davis: No,no I do not mean --

Chief Justice Earl Warren: Well, what do you mean?

Mr. Oscar H. Davis: I mean, that they were s -- what might be said to be substantially verbatim recordings of the -- by long -- well, shall I say, longhand methods.

So, they were not, so far as I know, mechanical recording, though I'm not even certain as to that.

Justice William J. Brennan: Now, well, what were Ford's statements that -- were they merely the F.B.I. agents setting down what, usually by telephone, foretold it?

Mr. Oscar H. Davis: Well, we would not claim that if the F.B.I. --

Justice William J. Brennan: But, weren't they that?

Mr. Oscar H. Davis: I don't really know.

I have never seen them, Mr.Justice Brennan.

Justice William J. Brennan: Well --

Mr. Oscar H. Davis: But what I'm saying is that the claim that the Government made in that c -- we did not claim in that case that these statements are anything other than faithful recordings of what had been told.

Justice William J. Brennan: Well, then you can't really say --

Mr. Oscar H. Davis: I can't say from my own knowledge.

Justice William J. Brennan: You don't know how this statement differs, if it does at all, with the one we're concern with here from the type of statement of Ford that we have before us again.

Mr. Oscar H. Davis: No, all I'm really saying is what issue was presented to the Court and I --

Justice William J. Brennan: Are those Ford statements still with the Court?

Mr. Oscar H. Davis: I don't know, Mr.Justice.

What I was referring to was the issue which was presented to the Court.

No issue was made as to that because the --

Justice William J. Brennan: No, but I understood you to suggest the difference between this statement in this case and the Ford statement.

Mr. Oscar H. Davis: I suggest that the Government did not make any claim that there was in the Ford -- in the Ford situation, the claim that it makes key.

Justice Hugo L. Black: What you're saying is that, if such -- they speak without it determined.

What you're saying -- I'm trying to find out what it says.

What you're saying is that if that was the issue presented in the Jenks case, presumably, the decision was directed to that issue.

Is that what you're saying?

Mr. Oscar H. Davis: I'm saying that the only issue with respect to this -- to this point was -- it was assumed that these were faithful recordings, as it was assumed that they were relevant and, so, that the issue -- the decision of the case was directed to that.

Justice Tom C. Clark: What you mean is the -- there were substantial --

Mr. Oscar H. Davis: Verbatim.

Justice Tom C. Clark: Verbatim recordings.

So, what they really are recitals, aren't they?

Mr. Oscar H. Davis: Well, the --

Justice Felix Frankfurter: The longhand --

Mr. Oscar H. Davis: There --

Justice Felix Frankfurter: The longhand dictation is no different from a short hand dictation.

Well --

Justice William J. Brennan: Well, were they --

Mr. Oscar H. Davis: Yes.

Justice William J. Brennan: Were they --

Mr. Oscar H. Davis: We take the --

Justice William J. Brennan: Were they longhand dictations?

Mr. Oscar H. Davis: Pardon me?

Justice William J. Brennan: Were they Longhand dictations?

Mr. Oscar H. Davis: Well, I --

Justice William J. Brennan: I would suppose you'd assume that the -- what we dealt with was what we had before us.

Mr. Oscar H. Davis: Well, all I would say, Mr.Justice Brennan, is that the Government made no claim in that case, as far as I can tell, that these were not faithful recordings, nor do they claim that that they weren't relevant to the case.

Justice William J. Brennan: Well, do you suggest that the Ford statements were longhand statements?

Mr. Oscar H. Davis: I don't know.

I know I don't think they were Ford's longhand statements.

I don't know if --

Justice William J. Brennan: Well, anyone's longhands?

Mr. Oscar H. Davis: I don't know what the agent did, whether he took down over the telephone in longhand what Ford is telling him, as it has been done in some of our cases.

I don't know --

Justice Felix Frankfurter: Just in interest of your time, we could all read the opinion and see what you agree to.

Mr. Oscar H. Davis: Well, any way, that is the view of the Jencks decision which was taken by the Department of Justice, by a number of federal courts though, as I shall say, not by all, and by the members of Congress when the bill came before them.

After the Jencks decision, there were, as the Court is aware, a number of lower court decisions which, in the view of the department and, subsequently, came to be the view of Congress, extended the Jencks decision or found implications in the Jencks decision which, in our view, where not there.

Extended it to pretrial matters, extended it to requiring the production on entire Government files regardless of the relevancy of the materials, even extended to quashing post c -- after conviction, quashing convictions even though no demand for production had been made.

As a result of this cropping up of lower court cases, suggestion was made by the Department of Justice to the Congress that a bill should be enacted which would incorporate the rule of the Jencks case, as we understood it, and would also set the confines of the so-called Jencks doctrine so that there would be, in the future, no reason for doubt as to what types of production of documents relating to Government witnesses should be produced in federal criminal trial.

I think that it may help if I say that there were four purposes of the statute, which are revealed not only by the presentation by the Department of Justice, which was the initial moving factor, but which are revealed by the entire legislative history of the committee reports and the debates on the Floor of both Houses of Congress.

And, the first of those purposes was to accept the Jencks decision as it was understood, that is, authenticated documents of the witnesses were to be produced by the Government for impeachment purposes.

The legislative history, both the reports and the debates, are filled with the use of the word “authenticated documents,” with the use of the word “confident documents,” that is, documents which would be admissible in evience if it turns out that they did contain impeaching material.

That is very clear.

But, the second and opposing point --

Justice Potter Stewart: Let me --let me understand that, Mr.Davis.

Are you suggesting that nothing is to be produced except that which would be admissible in evidence?

Mr. Oscar H. Davis: No, sir.

That which isn't -- is to be produced which, in form, would be admissible in evidence if the contents were impeaching, that is, if it contained inconsistent matter or show bias or something like that.

But, nothing is to be produced which isn't --

Justice Potter Stewart: I understand.

Well, how do you reconcile that with the suggestion that the principles laid down by the Jencks decision were not the impaired or --

Mr. Oscar H. Davis: Well, in our view, the Jencks decision had to do with authenticated documents, authenticated documents which were really tied up with the which -- the witness could be held properly responsible.

So that, when, on cross-examination, the witness was asked “didn't you say such-and-such?”

You would have a document, on the basis of which, it would properly be said that the witness did say that such-and-such to the agent.

The Jencks decision made a distinction between admissible in evidence and that which should be produced.

But, what I'm saying now is --

Justice Potter Stewart: Well, is that distinction still obtained under the --

Mr. Oscar H. Davis: Yes, that --

Justice Potter Stewart: Under the statute?

Mr. Oscar H. Davis: That is right.

A signed statement would have to be produced even though it contained nothing inconsistent, that is, even when the defense counsel saw he wasn't able to conjure up the slightest degree of inconsistency and, of course, that would not be admissible in evidence.

If I may make myself clear, it's the form of the statement which is important for production.

Is it an authenticated statement?

If the contents of the statement which are important for admission into ele -- into evidence, does it contain inconsistent material?

Does it show bias?

It can't be admitted into evidence under the rule -- on the rules of evidence unless the content showed that it has an impeaching character.

Justice Potter Stewart: Yes, but whether or not a s -- I'm trying to it get clear your interpretation of the statute.

Whether or not it's a signed statement, one adopted or approved, or a substantial verbatim recital, it's nevertheless producible.

Mr. Oscar H. Davis: That is right.

Justice Potter Stewart: Even though it may not be admissible in evidence.

Mr. Oscar H. Davis: That is c -- perfectly correct, Mr.Justice.

Chief Justice Earl Warren: And, on the other hand, if it would be admissible but it was not authenticated by the witness, it would not be usable at all?

Mr. Oscar H. Davis: I know of no situation, Mr.Chief Justice, in which it would be admissible if it were not authenticated by the witness in some way.

Chief Justice Earl Warren: Well, let me tell you -- and maybe I don't quite understand.

Here's what I was wondering about.

Suppose in this case that Carlin had given the statement to the governmental agency to the opposite effect to that which he testified to on the trial.

And, the Government had that statement as recorded by the government agent in its possession.

We'll say that it wasn't verbatim and he just said “Oh, we talked for an hour but he denied any knowledge on this subject.

He denied this was true exactly.”

Under the Jencks statute, could they get passed?

Mr. Oscar H. Davis: No, sir.

Chief Justice Earl Warren: Could not get passed?

Mr. Oscar H. Davis: No, sir.

But it would also not be admissible in evidence if it were produced because it would not --

Chief Justice Earl Warren: No, it would not be admissible in evidence but it could be used -- it could be used by the defense, certainly, in cross-examination.

Mr. Oscar H. Davis: Yes, but there an awful lot of things, Mr.Chief Justice, which can be used by the defense in cross-examination --

Chief Justice Earl Warren: Yes.

Mr. Oscar H. Davis: If they happen to get them, which they can't compel --

Chief Justice Earl Warren: Yes.

Mr. Oscar H. Davis: The Government to produce.

And, the theory of this statute is that the Government should be compelled to produce those things which can properly be used in cross-examination because the document really stands for what the witness said.

Now, if I may get ahead of myself a little --

Chief Justice Earl Warren: In other words, it's formed in that substance.

Mr. Oscar H. Davis: No,no sir.

No it isn't formed in that substance because, as we all know, there are many documents written up by other people which do not properly reproduce what we say at all.

I think we all know that from our experience with newspaper reports.

We all know that from memoranda of conferences that we have held.

I have seen any number of memoranda and I really think that the Justices have, too, in which there had been summarized what the participants said in which participants would say “I didn't say that or, if I did say that, I qualified it in this way.”

So that, it is not an appropriate real summary of what went on.

If I may make this suggestion, there is a very estimable publication that purports to publish verbatim transcripts of some of the oral arguments in this Court, but I have, several times, seen reports of arguments in which I participated and which what I thought had been an answer to a Justice's question of several hundred words, fall down to the word “yes or no” in the reports of the United States Law.

And, these are -- this is a matter of common knowledge which was known to Congress, too, that there are many types of summaries or memoranda of conferences or interviews which contain omissions in which the interviewer is interested in one thing and fails to include qualifications or important matters which the interviewee, the perspective or potential witness, thinks are important.

So that, what you have in a case like that is not an authenticated document.

You have something as to which you can't tell how much is the product of the interviewer and how much is the product of the interviewee.

And, before you can really say to the interviewee for impeachment purpose, which is the only real use that this may properly be made in federal criminal trials, “didn't you make a prior contradictory statement?”

you have to separate out that part of the statement which is the interviewer's addition and that part of it which is the true statement of the interviewee.

And, the judgment that Congress made was that this can't properly be done unless you have the kind of statements which are included in subsection (e) of the Jencks Act.

And, of course, our position is that that's a reasonable position which Congress had the right to adopt on the basis of the prior law in this field and on the basis of the common knowledge and experience which Congress, along with all the rest of us, has.

But, before I come to that, I'd like to make sure that Your Honors understand that that is what Congress did because there has been some claim that Congress did not do what I said, that it did not limit the Jencks Act to authenticated documents or authenticated statements.

And, that these words do not mean what they appear on their surface to mean.

I did not get the opportunity to tell the Court that, in the mind of Congress, wasn't there not only the acceptance of what it understood as the true Jencks doctrine but also the converse, that is, it wanted to prevent the revealing to the defendant and the defendant's counsel of investigative reports by the F.B.I. and by other investigative agencies which contained a lot of material which Congress thought should not be made available to the defense.

That is the names of certain confidential informants, the names of investigative techniques, irrelevant material, comments on wholly third party, some of whom were innocent and some of whom leads as to further criminal investigation.

All types of unverified information leave an impression.

That is, it was the purpose of Congress to prevent this type of material from being made available to the counsel for the defendant and to the defendants because, as I said, Congress thought this is the kind of material they had no right to see and which they could not properly use in criminal trials.

And, as I have already indicated, too, Congress did want to prevent, for the reasons I have summarized, the production of unauthenticated incompetent documents, documents which really could not be properly used in court to impeach the witness' own testimony because you wouldn't know whether it was the witness' statement that was being used or whether it was someone else's, some third party's, the agent's, the interviewer's.

The history of the statute, I think, makes it absolutely clear that Congress was intending to establish an exclusive procedure, that is, that this procedure was to be the procedure used in all federal criminal trials thereafter.

There was no effort by Congress to establish an alternative procedure.

And, what shall I say, judicial procedures could be added onto the exclusive procedure which Congress adopted.

We have not extended --

Justice John M. Harlan: Do you say they could not be added on?

Mr. Oscar H. Davis: Yes, they could not be.

We did not exclu -- extensively brief this in any of this cases because we thought it was absolutely clear, from the reading of the legislative history, it's the basic posture of the entire legislative history that this procedure was to be exclusive but, since the petitioners have challenged the issue, I want to read a couple of sentences to the Court from the committee reports to substantiate our position that this was to be the exclusive procedur.

The Senate Report of August 15, 1957 says the purpose of the proposed legislation is to amend the United States Code to provide the exclusive procedure for handling demands for the production of statements and reports of witnesses.

Justice John M. Harlan: Where -- Is that cited in your brief?

Mr. Oscar H. Davis: Page 49.

Justice John M. Harlan: Thank you.

Mr. Oscar H. Davis: And then --

Justice William J. Brennan: Well -- excuse me.

Mr. Oscar H. Davis: Pardon?

Justice William J. Brennan: Exclusive procedure, is that to say that the only statements of satisfying one of the definitions under the statute and were producible?

Mr. Oscar H. Davis: Yes, Mr.Justice.

If they were statements made to Government agents in the hands of the Government.

Justice William J. Brennan: Will you put any weight at all upon the fact that, as I recall it, the bills that -- they were originally introduced, in terms, stated that they were exclusive as o the types of statement, but is brought back from the conference and is finally passed, wasn't that language deleted?

Mr. Oscar H. Davis: The language except as provided in Subsection (b) was deleted and, as indicated on the end of Subsection (a) on page 4, it provides that no statements or reports are to be produced, and this is the end of Subsection (a), until said witness has testified on direct-examination in the trial of the case.

And then, the very next sentence, the very beginning of (b) said “after a witness called by the United States has testified on direct-examination,” and then there is “prescribed procedure was just to be followed.”

I will say that I have read very carefully the -- several times, the debate in the House and in the Senate on the conference bill, as well as the report of the managers of the House, and I see not there the slightest inference or the slightest suggestion that the exclusivity which was clear before was no longer to be the case.

In fact --

Justice William J. Brennan: Then, how do you explain the deletion of the exclusivity language in the conference?

Mr. Oscar H. Davis: I think it was simply a change in wording to make it clear that no statements of any type, not even the authenticated statements of any type, were to be produced until the trial.

There was a very great debate, as Your Honor may recall, as to pretrial discovery, which I won't go into in this case.

Justice Felix Frankfurter: There's another star you have to clear, Mr.Davis, and that is the restriction (e), another statement --

Mr. Oscar H. Davis: To (b), (c), and (d)?

Justice Felix Frankfurter: Yes.

Mr. Oscar H. Davis: Well, the reason for that is what I was just adverting to, Mr.Justice.

Congress wanted to provide that no types of statement, even unauthenticated statements, could be produced prior to trial, and so, if they had limited, if they had made (e) effective as to (a), what they would have provided is that only authenticated statements should not be produced and left a gap as to unauthenticated statements.

I'm not certain if I'm making myself clear.

Justice William J. Brennan: You don't.

Mr. Oscar H. Davis: Congress wanted across the board to say that no types of statement, even including authenticated statements, were to be produced prior to trial.

So, they had to have the broadest type of definition of the word “statements or report” or they wouldn't succeed in fulfilling that purpose which they had, so that they could not use a limited definition of the word “statement” with relation to (a) as they do later on when they come to what's to be produced at the trial.

They wanted it to provide that all types of statements should not be produced prior to trial, all types authenticated, unauthenticated, summaries, competent, whatever type.

And, we think that's the clear explanation of why Congress did what it did in limiting the definition of statement to the post-tri -- or the midst of trial provisions of the Jencks Act.

Now, the conference report -- Mr.Justice Brennan, there is a reference on the debate in -- on the conference bill by Senator Keating that -- who was a member of the Conference Committee that only statements which need be produced are the authenticated statements.

This was the -- and Senator Dirksen had earlier said, not on the conference report but earlier in the Senate, that we have --

Justice William J. Brennan: I get your position which is that while what was in the bill is the reason introduced, the deletion had a very indefinite purpose in mind, namely, as you have suggested, to make clear that, on pretrial, nothing was produced.

Mr. Oscar H. Davis: That -- That is right.

Justice William J. Brennan: And, only after the witness had testified.

Mr. Oscar H. Davis: That's right.

And then, our position is, after the witness had testified, only what I have described as authenticated statements were to be produced.

Justice Felix Frankfurter: Let me ask you some more how this works.

Indications of suppression of illegally secured evidence are necessary to have such a motion made pretrial so that the trial couldn't be interrupted.

Apparently, in regard to impeaching trial report, an authenticated document, that must be done in the middle of the trial.

Mr. Oscar H. Davis: Yes.

The theory was that it sh -- it's terribly important to know whether the so-called impeaching document is relevant, bears, or touches on, I don't want the use the word “relevant,” bears or touches on the testimony of the witness on direct-examination.

Justice Felix Frankfurter: What would happen to it, I don't know then but, I suppose, one policy is that when a witness testifies, the counsel, on cross, lays the foundation to ask him for a report.

I suppose that is a question that you need to choose to make discovery.

If it's dealt with, the jury would sit out of the room for many hours, is that it?

Mr. Oscar H. Davis: No.

What usually happen is that, immediately after the end of the direct-examination --

Justice Felix Frankfurter: This is not in the presence of the jury or the Court?

Mr. Oscar H. Davis: Well, I think it may be at the bench.

Justice Felix Frankfurter: Well, it might -- suppose you might well require a witness to cross-examination to the circumstances, under which, the document is filed.

Mr. Oscar H. Davis: That has not actually turned out to be the practice in --

Justice Felix Frankfurter: What is the practice?

Mr. Oscar H. Davis: The practice is that a motion is made at the end of the witness' direct testimony and the Government hands over everything which it believes to be --

Justice Felix Frankfurter: It gives it to the judge to look at?

Mr. Oscar H. Davis: No, it does not, unless it has doubt, that is, if it isn't certain --

Justice Felix Frankfurter: Well, you can't -- but I'm talking about if they're discussing that.

Mr. Oscar H. Davis: Would it -- the things that it doesn't handover, it may hand to the judge to look at, s -- to see whether it falls within the Jencks statute.

If --

Justice Felix Frankfurter: But that may require a testimony, whether it does or it doesn't.

Mr. Oscar H. Davis: It may but, in most cases, it has not because the judge has been enabled to make a determination by an inspection of the document that it is clearly not within the --

Justice William J. Brennan: Well, as a matter of fact, Mr.Davis, if the judgment is generally of the view that they may not take testimony that, in other words --

Mr. Oscar H. Davis: I --

Justice William J. Brennan: They have the responsibility in camera to decide both issues of relevancy and issues of substantially verbatim recital?

Mr. Oscar H. Davis: I can't speak --

Justice Felix Frankfurter: When it's about --

Mr.Justice Brennan, but I do know that, in a few rare instances, suggestions for voir dire outside the presence of the jury had been made.

I don't know if any such --

Justice Felix Frankfurter: I don't see how he can avoid doing that.

Mr. Oscar H. Davis: Well --

Justice Felix Frankfurter: I mean, whether a minute is somebody's summary of a long conversation or whether it's a verbatim or whether it's approved, I don't see that the document necessarily would disclose that.

Mr. Oscar H. Davis: But, in most case in --

Justice Felix Frankfurter: I've got to believe that we have seen minutes of conversation that bore no resemblance to the real vital conversation.

If it was adjective we used, they'd put nouns just before the qualification or after, now, as to all that, they had to have some criminal issue.

How do you --

Mr. Oscar H. Davis: Occasionally, you may.

Justice Felix Frankfurter: How experience tell from the doctrine whether that's the way the fellow called?

Mr. Oscar H. Davis: Well, Congress has laid down some guide posts.

It has given the words of the statute --

Justice William J. Brennan: Well, before you get what he'd say, that's in this very case.

Mr. Oscar H. Davis: Yes.

Justice William J. Brennan: The Court of Appeals itself determined, merely form the examination of the document, did it not?

Mr. Oscar H. Davis: Yes.

Justice William J. Brennan: And, I assume that it must have done this, at least.

And, it also read Mr.Carlin's testimony and decided for itself whether this statement was a substantially verbatim recital of the things he testified to at the trial, did they not?

Mr. Oscar H. Davis: No, sir.

I think you can tell by internal inspection of the document which, of course, I have seen only because it was made available to me by the Clerk of this Court, but I think you can tell from an internal inspection of the document that it contains the impressions of the interviewer --

Justice Felix Frankfurter: Well, you can tell if he so appropriately characterized it.

Mr. Oscar H. Davis: I'm --

Justice Felix Frankfurter: What I am saying --

Mr. Oscar H. Davis: I'm talking about this document.

Justice Felix Frankfurter: I had an-hour's talk with him.

I then went home and, the next day, I reported it by telling these dial-ins of evidence the states made.

No story -- I would really think that those are accurate accounts of what was raised in camera.

Mr. Oscar H. Davis: Well, there are many --

Justice Felix Frankfurter: That's the question they've raised and knowing that wouldn't make it that way.

Mr. Oscar H. Davis: That's right, and that's why Congress provided that it should be, not only a substantially verbatim recital, but recorded it contemporaneously.

That's in the statute, “recorded it contemporaneously.”

Justice Felix Frankfurter: But you can't come back with an argument.

Mr. Oscar H. Davis: But you can sometimes tell that --

Justice Felix Frankfurter: I'd so and --

Mr. Oscar H. Davis: You can't invariably tell it but, I would suggest --

Justice Felix Frankfurter: Or I was addressing myself to the suggestion that I should be concise.

If the courts have ruled, we can't hear testimony.

He couldn't possibly --

Mr. Oscar H. Davis: No.

Justice Felix Frankfurter: In many other cases --

Mr. Oscar H. Davis: I don't know what the practice has been, but I do know this.

That, in many cases, courts have been able to determine, from an inspection of the document plus such evidence as we have in this case, the statement by the -- by the interviewer that it was not approved by the witness and that it was not signed by him and adopted by him and, also, that it was a general summary, plus --

Justice William J. Brennan: Now --

Mr. Oscar H. Davis: An internal inspection --

Justice William J. Brennan: Right there -- right there, three years after the event, after he made this statement, Mr.Belavan asserts an affidavit that “all I put in that memorandum was a general summary of what I had been told.”

Isn't in the -- in fact, what he said?

Mr. Oscar H. Davis: Yes.

Justice William J. Brennan: And, yet, there was no examination or cross-examination of that statement.

There was no testimony of any kind before the Court of Appeals to indicate what it was, in fact, Carlin had said to Belavan on the occasion of the interview which resulted in Belavan's preparation of the memorandum, was there?

Mr. Oscar H. Davis: No, sir.

Justice William J. Brennan: Well, now, how can the Court of Appeals accept as the -- takes his bare statement that all that that memorandum is, is a bear summary of what the witness told him.

How can the Court of Appeals' finding here be sustained?

Mr. Oscar H. Davis: I think there are three things to be said about this, Mr.Justice Brennan, and I'll try to explain each of them.

First, this is a unique situation.

This was a case in which it was tried before the Jencks decision under a rule of law --

Justice William J. Brennan: Well --

Mr. Oscar H. Davis: Which was, later, disapproved.

Justice William J. Brennan: Don't -- I'm not so concerned with whether this is done by the Court of Appeals or the district court for the purposes of this question.

I am concerned how a court, by itself, is to reach the conclusion the Court of Appeals did here without having any examination at all either of the witness whose statement to the investigator the investigator purports to summarize.

Mr. Oscar H. Davis: They were not asked to -- to do that.

If I may use an analogy from civil procedure, we have a summary judgment proceeding in which, if one party says this is -- these are the facts and the other party doesn't come in and deny them --

Justice William J. Brennan: How could -- how could the other party deny it there?

Mr. Oscar H. Davis: Belavan was -- was available to them.

They could question him.

They could ask that he be called.

If they had any reason to believe that what was said here was not accurate, they didn't do that.

Carlin was available to them, to query as to whether --

Justice William J. Brennan: Well --

Mr. Oscar H. Davis: -- a --

Justice William J. Brennan: -- let's get a preliminary to clear it up, if you will, for me.

How would they know what to do about this statement when they never saw it?

How would they know what it was or how they could attack it or, perhaps, be satisfied that they shouldn't attempt to attack it when they never say it?

Mr. Oscar H. Davis: Well, that's inevitable, Mr.-- Mr.Justice Brennan.

Congress has provided that they shouldn't see statements of a certain kind.

In fact, under certain -- under judicial rules, when you ask for discovery, the courts decide that you can't see statements of certain kinds.

On the other hand, they have a right to see statements of other kinds.

If you allow them to see it, they are -- you're -- they are getting precisely the advantage that Congress has said they are not allowed to have.

Now, the only way, as Judge Learned Hand said, to resolve this situation is to have -- unless you have the prosecutor do it on his own, is to have the judge do it, informed as best he may be by inspection, by whatever evidence is available, and that is the procedure which Congress adopted in Jencks.

Justice William J. Brennan: Well, now, Congress adopted that as to the -- expressly on the issue of relevancy to put it, that is, where the Government says that --

Mr. Oscar H. Davis: Yes.

Justice William J. Brennan: -- it's irrelevant material on the statement, the Government concedes that parts of the statement should be turned over and the Congress has said, “Well, the Court shall, in camera, determine whether there are irrelevant parts and turn over only the relevant material.”

But, has the Congress has explicitly stated that the Court shall, in camera, determine whether or not a given report is a substantially verbatim recital.

Mr. Oscar H. Davis: No, Mr.Justice.

But, we think that it follows by very clear analogy because Congress has said that, if it isn't authenticated statement, it is not to be handed over.

As I mentioned before, someone has to make that decision.

Justice William J. Brennan: Yes, but the difficulty -- you might have told me --

Mr. Oscar H. Davis: Yes.

Justice William J. Brennan: -- Mr.Davis, the -- among these authenticated statements is a substantially verbatim recital.

Mr. Oscar H. Davis: That's right.

Justice William J. Brennan: And I -- You've already agreed with me that, whether something is or not, it might be a question --

Mr. Oscar H. Davis: Might in certain cases, yes.

Justice William J. Brennan: -- might be controverted.

Mr. Oscar H. Davis: Yes, in certain cases.

Justice William J. Brennan: And, what I don't quite understand, in response both to me and Justice Frankfurter is why you suggest this should be the -- and in camera, determination by -- by the trial judge.

Mr. Oscar H. Davis: Because, if it isn't, then the defendant will get precisely the statement which Congress said he shall not get.

Justice William J. Brennan: Because he may see it --

Justice Felix Frankfurter: No, that is not a difficulty.

Mr. Oscar H. Davis: That's right.

He will --

Justice Felix Frankfurter: (Voice Overlap) --

Mr. Oscar H. Davis: -- see everything.

He see -- he will -- if Congress has said he shall not get an unauthenticated statement and you let him always look at it to see whether it is authenticated or unauthenticated, he has seen what Congress has said he shall see and he, of course, would be able to use it because it will be in the mind of the defense counsel and the defendant.

And there -- if I may adopt Mr.Justice Frankfurter's comment, the statute would not have any -- any purpose.

Justice William J. Brennan: Well, then, that -- that's to suggest then, at the level of trial judge, the Court of Appeals and, I gather, also in this Court, this whole determination is to be made, the determination whether it's authenticated in the sense that it's a substantially verbatim recital, by -- in the first instance, the trial judge, he decides against the defendant.

The Court of Appeals may reach the same conclusion without the defendant having any opportunity to be heard on the question of whether it is or isn't substantial.

Mr. Oscar H. Davis: Well, he has certain opportunity.

It's a limited opportunity.

He could --

Justice William J. Brennan: Well, what is it?

I don't --

Mr. Oscar H. Davis: He could --

Justice William J. Brennan: What's the opportunity?

Mr. Oscar H. Davis: For instance, he can say an authenticated statement is a statement which does not contain explicit expressions of the interviewer.

If you -- if Your Honor will turn to page 37, where we quote what Judge Moore said in the Anderson --

Justice William J. Brennan: Yes.

Mr. Oscar H. Davis: -- case prior to the Jencks statute and which Congress explicitly adopted, the Conference Committee report of the House manager said, “We believe that Judge Moore's statement in the Anderson case is the statement that should be followed here.”

Justice William J. Brennan: No, but what I'm trying to get to is, by and large, the -- these determinations -- this determination, as to a particular statement, whether this is substantially verbatim recital, is to be made without hearing the defense on that issue, isn't it?

Mr. Oscar H. Davis: Well --

Justice William J. Brennan: And, it's to be made in the trial court and the Court of Appeals and in this Court.

And, my question is if that's the fact, isn't there a constitutional question raised under the statute?

Mr. Oscar H. Davis: I --

Chief Justice Earl Warren: You may answer that in the morning.

Print this transcript Transcript: 

Argument of Oscar H. Davis

Chief Justice Earl Warren: Number 435, 436 and 437, Harry Lev versus United States of America, Raymond Wool v. United States of America, and Marvin Rubin v. United States of America.

Mr. Davis, you may continue your argument.

Mr. Oscar H. Davis: Mr. Chief Justice, may it please the Court.

With the Court's permission, I should like to take up, in the remaining time that I have at my disposal, the constitutional questions, both those relating to in camera inspection and those relating to the Sixth and Fifth Amendments.

And, I should also like to spend a little while, if I may, on the question of harmless error as it relates to this particular case.

First, on the subject of in camera inspection, there are three aspects of that problem that may arise in -- in a trial.

The first is that you may have a statement which is admittedly an authenticated statement which admittedly, at least in part, touches upon the testimony of the witness but contains, in the view of the Government, irrelevant material.

Now, Congress has provided in subsection (c) of 18 U.S.C. 3500 that, in those circumstances, the judge is to excise the irrelevant materials, preserving them for the benefit of the appellate court.

Now, there are two other types of situations in which a similar comparable problem may arise.

The Government may say “We don't have any statement of the witness which is producible under the statute at all, such as in this case and the next case.”

And, the third type of situation is the Government may say “Yes, we have a statement of the witness signed, but it has nothing to do with this case at all and it has no relationship.

It doesn't touch upon the testimony of the witness at this trial.”

Now, in each of those three situations, we think that the -- a proper procedure is for the judge to make an in camera inspection to determine whether the statement is producible and, if it is producible, whether certain portions of it should be excised.

Justice Felix Frankfurter: But you would not restrict the judge -- the trial judge to the examination of the document if his examination reasons, as a matter of expression and understanding to say “I can't tell from the argument if we could do this and I want to ask some questions.”

Mr. Oscar H. Davis: I'm just coming right to that --

Justice Felix Frankfurter: All right.

Mr. Oscar H. Davis: -- to that point --

Justice Felix Frankfurter: All right.

Mr. Oscar H. Davis: -- Mr. Justice.

The first thing I want to say is that I think that, in many instances, you can tell from an examination on a face of a document that it is not producible.

For instance, as will appear, I believe, in the next case, if it appears that the interview with the potential or perspective witness took three hours and the document has 55 lines in it, you would think that it would not be a substantially verbatim recital of what went on at that interview.

Or, if the document, on its face, contains statements by the agent that the potential witness was evasive or lying or -- or didn't know what he was talking about, you would know that that was not within the terms of the statute.

Or, similarly, if the document contained a material that didn't come out of the mouth of the witness at all, material that clearly and obviously came from some other person, a third person, but someone else told the agent about the witness or what someone -- what the agent learned about the matters in controversy from some third person, you would know that that was not a statement of the witness.

Justice William J. Brennan: Well, now, Mr. Davis, you said if that -- something appeared that the witness had been evasive or lying or such --

Mr. Oscar H. Davis: A statement by the agent.

Justice William J. Brennan: A statement by the agent, I see.

Well, suppose, in this very case, there had been a statement by the agent, “I talked with Carlin.

Carlin denied having any knowledge whatever of this business.”

That's all that the statement says.

And then, Carlin testifies as Carlin testified at the trial.

Would that statement be producible under the statute?

Mr. Oscar H. Davis: No, sir.

I do -- I don't think that that statement would be producible because it is not a substantially verbatim recording of what the witness said, unless the judge, on inquiry, and that's the next point I'm coming to, in the normal case, the agent -- the witness is on the stand.

Carlin is on the stand.

The defense attorney can question Carlin, “Did you give a statement?

Did you give a written statement?

Did you see one that was written up by the agent?

What did you tell the agent?

Was the agent taking notes?

Was there a shorthand reporter there?

Was there a recording machine?”

In the ordinary case, that's -- that type of questioning is available to the defense counsel.

Justice William J. Brennan: Well, suppose the examination of Carlin was “Did you have an interview with any government agent?”

“Yes, I did.”

“What did you say at that interview?”

“I don't remember.”

And, the statement is the one that I have suggested to you that, in the interview, what Carlin said to the agent was “I don't know a thing about this business, never heard of it, and had no connection with it whatever.”

Mr. Oscar H. Davis: Our point simply, Mr. Justice Brenan --

Justice William J. Brennan: Well --

Mr. Oscar H. Davis: Is --

Justice William J. Brennan: But your point is that that would not be a producible statement.

Mr. Oscar H. Davis: If it were not a substantially verbatim recital, yes.

Now, I think that I can try to cover what may be in your mind as to --

Justice William J. Brennan: Well, what's in my mind of course is, and perfectly obviously, that would be an extraordinarily helpful statement to the defense in cross-examination of Carlin, wouldn't it?

Mr. Oscar H. Davis: Yes, but there are ways that that can be handled, we think, without -- outside of the statute.

First place, you can cross-examine Carlin as to what he said.

Second place, it's always possible to call the agent to the stand if there's suspicion foundation laid for that.

If you have -- you can say to the judge “this is an important issue not collateral to the case, but it's very important.

It's central to this case.

I would like to call the agent to the stand to see what Carlin did say to the agent, from the agent's recollection.”

Now --

Justice Hugo L. Black: Suppose he denied it.

Suppose he -- suppose he denied that the man had said --

Mr. Oscar H. Davis: Well, if you call the agent, I think it's within the discretion of the Court to have the agent's memorandum produced because it's the agent's own memorandum in that case.

Justice Hugo L. Black: In the discretion?

Mr. Oscar H. Davis: Well, maybe even under the statute, that the agent's own -- see, it will no longer be an unauthenticated document.

It will be the agent's own document, so that it will be attributable to the agent, and I think that that would be producible probably under the statute.

Justice Hugo L. Black: But -- but the value in it would be is the statement that the man would have said you knew nothing about the case, which is always a relevant thing where the witness who testifies against it.

Mr. Oscar H. Davis: Well --

Justice Hugo L. Black: Did Congress, in your judgment, provide that evidence which is relevant to the defense on question of the relevance can be denied that the defense and go on with his trial on the basis that it would be bad for the Government interest to supply this relevant, very important testimony?

Mr. Oscar H. Davis: The short of my answer, Mr. Justice, is that Congress has not, in our view, denied the production to the defense of unquestionably relevant material.

Justice Hugo L. Black: Suppose this -- suppose this piece of paper which has not been seen by the counsel, saying the statement by the officer that “this witness told me he hated this man, had been an enemy of his for a long time, and then he proceeded to talk but I have not set out substantially what he said.”

Would that be admissible?

Mr. Oscar H. Davis: The paper itself would not be because it's merely the statement by the interviewer, the agent, of what he recalled of what the witness said.

Now, you might be able very well to call the wit -- the agent to the stand and have the agent examined on what the witness told him --

Justice Hugo L. Black: Suppose he didn't -- suppose he wouldn't tell you, and suppose the defendant --

Mr. Oscar H. Davis: Suppose --

Justice Hugo L. Black: Doesn't show that that was in it without seeing it.

Mr. Oscar H. Davis: If -- if the agent lied, Mr. Justice, the sanctions of perjury are available.

Justice William J. Brennan: Suppose he -- suppose the witness had --

Justice Felix Frankfurter: Could there be a sanction of perjury if nobody could get it?

I suppose if you couldn't get it to defend the man --

Mr. Oscar H. Davis: I -- I --

Justice Felix Frankfurter: For life or liberty, you couldn't get it to convict one.

Mr. Oscar H. Davis: I'm suggesting, too, that when the agent is on the stand, the memorandum is his memorandum and is producible at that time.

Justice William J. Brennan: Suppose the agent can't be found, he's dead or he disappeared that he can't produce it at the trial?

Mr. Oscar H. Davis: That is not an ordinary situation.

Justice William J. Brennan: Wait now, suppose it were, suppose it were to happen.

Mr. Oscar H. Davis: I think that the situation then would be the -- exactly the same as when a witness has died or disappeared, the witness who may be terribly important to the defense of the case and --

Justice Hugo L. Black: It's to -- as to all he is held that he --

Mr. Oscar H. Davis: That's right.

Justice William J. Brennan: So, the statement would then be producible notwithstanding the statute, is that it?

Mr. Oscar H. Davis: I would not want to say that, Mr. Justice, but certainly that's not a case we have here.

That's a tangential peripheral case which may or may --

Justice William J. Brennan: But they -- but, as I understand the burden of the Government's argument, it is that the statute defines exclusively the types of statements that shall be produced for use by the defense in cross-examination of a Government's witness, isn't that right?

Mr. Oscar H. Davis: That's right, but I would certainly not want to carry the burden of saying that, in some extraordinary situation where it may be this was whether there was no other possible way of getting hold of it, that there might not be exceptions read into the statute.

What I'm talking about is the normal ordinary case.

Justice William J. Brennan: Well, if there are exceptions read into the statute, then the statute is not, in fact, exclusive, is it?

Mr. Oscar H. Davis: No.

I think you're --

Justice William J. Brennan: All right.

Mr. Oscar H. Davis: -- reading it into the statute.

What I'm -- what -- as in many cases, statutes have explicit or implicit exceptions or conditions read into it in order to meet possibly unforeseen circumstances.

But, the statute itself is exclusive, that is, the statute as interpreted by the courts covers the situation.

Justice William J. Brennan: Well, let me give you another hypothetical.

Now, suppose you were -- had a prosecution for the murder of a federal officer and the witness takes the stand and he says that he attended a meeting at which the defendant and others were present.

And, at that meeting, the defendant said that he had shot and killed the federal officer, and he also says that he reported that to a government agent.

He signed nothing.

He never saw any memorandum of his report, and the reports are called for and the Government produces a report.

And, the report -- the memorandum, rather, of the report is that, yes, he'd been told by the witness that there was such a meeting and that, at that meeting, the defendant was present and there were others also present.

And, that the statement was made that someone had shot and killed the federal officer, but that the statement was made not by the defendant but by someone else at the meeting.

Would that report qualify him in the statute?

Mr. Oscar H. Davis: No, but it would certainly be the duty of the United States Attorney.I

f a witness on a stand denies having made a statement, a previous statement which was contradictory to the one that he makes on the stand, and the U.S. Attorney knows that that's not true, to call it to the attention of the Court and of the defense counsel.

And the -- and the fact of the prior inconsistent statement is the important thing and, once that's been brought to the attention as it would, I think, in this case where it was -- where the witness made a statement on the stand which, to the knowledge of the United States Attorney at that moment, was not true whether because the witness forgot or was lying.

I think, then, it would be the duty of the United States Attorney.

And, I think that the statute can be appropriately administered in accordance with the spirit which Congress intended and, also, to advance the cause of criminal justice by appropriate --

Justice William J. Brennan: Well, now --

Mr. Oscar H. Davis: -- action by the Government.

Justice William J. Brennan: Well, I -- I just want to get it clear then.

It is not the Government's position that the statute is necessarily exclusive as to the types of statements that may be produced and used by the defense --

Mr. Oscar H. Davis: Well, perhaps, we me -- we have a semantic difference, Mr. Justice Brenan, but I think the statute is exclusive, the statute properly interpreted, and I think the statute is exclusive.

What I was saying to you before is that the statute can be supplemented by statements by the Government, by oral statements by the Government, by the calling of the agents, and so forth, so that there is no need to find any inc -- any constitutional invalidity in the statute because the end of -- ends of criminal justice can be attained by these other methods, so.

Justice William J. Brennan: Well, I must say that, to me, Mr. Davis, that's nothing except an acknowledgment full of semantics there that you will, that the statute was not exclusive.

Mr. Oscar H. Davis: Perhaps, but I would say again, Mr. Justice Brenan, that I think those of the peripheral cases and not the ordinary run of cases in the criminal courts.

Justice Felix Frankfurter: When you say relevant, when you use the word “relevant,” something is relevant, I take it, you mean -- you use the term for its technical connotation as used in the law of evidence --

Mr. Oscar H. Davis: It --

Justice Felix Frankfurter: Subject to all the exclusionary rules of the law of evidence, subject also to the discretion of the trial court in allowing range of cross-examination, allowing the range of impeachment, and all the other ranges of discretionary, exclusionary authority or admissibility authority to the filing of the evidence.

Mr. Oscar H. Davis: Yes, Mr. Justice.

I don't think that the Sixth Amendment has ever been interpreted since the -- it was adopted to preclude Congress or the courts from adopting proper evidentiary rules, including rules of exclusion.

Justice Felix Frankfurter: It's done it this --

Mr. Oscar H. Davis: At --

Justice Felix Frankfurter: -- term.

Mr. Oscar H. Davis: It's been --

Justice Felix Frankfurter: It's done it this term.

Mr. Oscar H. Davis: It's been done by the courts and it's been done by Congress since the Judiciary Act of 1789, and I think the real issue is whether what Congress did here was a reasonable exercise of the power which is inherently its under the constitution to establish proper relevant -- proper reasonable rules of evidence, including exclusionary rules.

And, turning to that issue as to whether this was a reasonable exercise of the congressional power, I've touched --

Chief Justice Earl Warren: Before you get to that, may I ask you this question.

Suppose a -- an agent interviews a witness and he says “well, now, we'll talk about this or talk about that,” something that is not particularly connected with the case and maybe they'll talk for an hour or so, and then, he'd get down to business and he'll talk about two things in the case and he'll record, in the 55 lines that you were talking about, the vital things, but he puts on the top that “I talked to this man for an hour-and-a half and this does not purport to be a verbatim or a substantial report of our entire conversation.

And, the witness testifies and he's asked about the report and asked to see the report.

Would that eliminate the use of it?

Mr. Oscar H. Davis: Oh, certainly not, Mr. Chief Justice --

Chief Justice Earl Warren: Well, who's going to --

Mr. Oscar H. Davis: The mere fact --

Chief Justice Earl Warren: Who's going to decide that if the report itself says “I talked to him for an hour-and-a half and this is all I'm recording.

It isn't everything we talked about, but -- nor is it substantially all we talked about, but this is what I put on the files”?

Mr. Oscar H. Davis: Well, the -- there are aides to determination.

Chief Justice Earl Warren: I beg your pardon?

Mr. Oscar H. Davis: There are aides for the Court to make this determination.

In the first place, the defense counsel can question the witness.

“How long did you talk to the agent?

Was the entire discussion about this case or was it about some wholly extraneous matters?

Did you cover all what you've testified to on direct examination?”

That will be of great help to determine whether the agent's report is a complete -- summary or substantially verbatim or not.

Then, if the Court feels that, after having inspected the document itself and having heard the -- or the direct testimony of the witness and also the cross-examination as to what went on at the interview, if the Court then feels that it's necessary to have a voir dire, it is within the discretion of the Court to call the agent to see what the agent did after having, I should think, exhausted what can be done through the witness himself, that is, asking the witness what the agent did.

“Did he take shorthand notes?

Did he -- did he have a recording machine?

Was there a stenographer there?”

We certainly don't take the position that there is no -- that there is an exclusion on the part of the Courts of the power to hold a voir dire.

We think that's the unusual situation, a situation which will not arise very frequently but, certainly, it is not excluded.

Justice Felix Frankfurter: We don't have to speculate now whether it's unusual?

My own guess would be that I think your prophesy will not be fulfilled.

Mr. Oscar H. Davis: Perhaps not, Mr. Justice.

Justice Felix Frankfurter: But, I may be even more wrong than you may be wrong.

Mr. Oscar H. Davis: I'm basing it, in part, of --

Justice Felix Frankfurter: But that is -- so long as you concede or recognize, as I think one must, that under this statute, it may become necessary, and it is open to the Court, indeed you may be asked to, hold a voir dire examination regarding the visibility of the document or the presence of the jury.

Mr. Oscar H. Davis: Yes.

I --

Justice Felix Frankfurter: That is done with reference to a request to produce documents that ought not to be asked to be produced in the presence of the jury because of the Fifth Amendment in case there's a declamation, having nothing to do with this problem.

Mr. Oscar H. Davis: And, that's true of other types of situation in which motion to suppress evidence and other kinds in which --

Justice Felix Frankfurter: Well, that's why I think I suggested, yesterday, the difference between the problem that arises under this statute and the problem that arise on the motion to suppress illegally obtained evidence.

Mr. Oscar H. Davis: Well, it's prior to --

Justice Felix Frankfurter: If the Court has held that that must be done prior to the trial unless the exigency arises later.

Knowledge doesn't -- hasn't -- wasn't available or could not have been made available before the trial in order not to have an interruption of the trial.

Now, in this situation, I take it that cases will seldom arise that this could be -- indeed, the statute forbids you.

Mr. Oscar H. Davis: It cannot be done before.

Justice Felix Frankfurter: It cannot be done, so that he -- and there must be an interruption of the trial and there may be a lengthy interruption of the trial, conflict of testimony, long cross-examination, to ascertain the conditions under which the subject matter of what the document contained, et cetera, et cetera, and that must be done not in the presence of the jury because the finding is a judge's finding, as all admissibility is a question for the Court.

Mr. Oscar H. Davis: Yes.

Justice Felix Frankfurter: Except in confessions.

Mr. Oscar H. Davis: Now --

Justice Hugo L. Black: That approaches the problem that arises in my mind that you haven't mentioned.

It may not rise to the constitutional level, but it's there.

Every trial lawyer recognizes, who has tried lawsuits, that you need information to cross-examine.

Here, the only person that will have the information is the judge.

The other man cannot look to see whether there are probably conclusions to be reached different to the conclusion that the judge might reach.

History, unfortunately, records the fact that, sometimes, judges might be wrong for one reason or another and the defendant might not have the slightest knowledge of what is in that paper.

It might be on the borderline.

The judge might think it's not and yet they're -- you have to have them.

The -- the lawyer needs -- I'm saying this may not arrive to a constitutional level, but I'm talking about in practice.

When you try a civil case or a criminal case, the rule with which I've always been familiar with is, if the judge doesn't take your papers and look at it secretly, would that -- and deny to whichever counsel needs the information the right to look at it, to present his views and his arguments, but it -- both look at it.

Here, Congress has adopted a rule which forbids anyone but the judge to look at it, unless it would be the prosecuting attorney in some instances.

The lawyer for the defendant cannot see it.

It may be that the judge looks it and has a very guilty man and so forth, and the case is strong.

He reaches the conclusion that “after all, we can't waste time letting counsel look at this.

It won't do the man any harm.”

Is there anything in your judgment to the idea of passing the evidence?

When you permit the judge in his discretion in camera to look, he and the prosecuting attorney knows what's in it and you do not let the defendant have any look on it at all, how can you say that the defendant can be protected by his asking the proper questions to the witnesses, so as to bring out the facts that would make this admissible?

How -- how does that give him the be -- full benefit of having witnesses in his behalf, confronted by him, with his chance to cross-examine them with knowledge a lawyer would have to have in order to cross-examine?

Mr. Oscar H. Davis: Mr. Justice, Congress adopted this view after consideration and the problem with an in camera inspection was the -- was considered on the Floor of the Senate.

Justice Hugo L. Black: I understand that.

Mr. Oscar H. Davis: It --

Justice Hugo L. Black: I'm talking about the constitutional level.

Mr. Oscar H. Davis: Yes, it -- it adopted it because he felt that there was no other solution possible.

If you allow the defense counsel to inspect all these documents, then you would have frustrated the whole purpose of the legislation, that is, they would see that which they're not suppose to see if it turned out that the document was not the kind they were suppose to see.

And, if the defense counsel made a very large and sweeping demand, they would have inspection of large and sweeping areas of documents which Congress thought they should not get to see.

Justice Hugo L. Black: Well, you agree, do you not, that there are some things that a defendant has a right to see and some witnesses he has a right to have, under the constitution, whether Congress wants him to have it or not?

Mr. Oscar H. Davis: Yes, but I think that --

Justice Hugo L. Black: So, you are getting here into the area of whether this is one of those instances.

Mr. Oscar H. Davis: I -- and our position, of course, is that Congress had the right to say that the defense should not see the kind of non-producible documents which were spelled out in the statute as non-producible.

Now, if you had this situation in which, if the defendant sees it all, you have frustrated the purpose of the statute, you have only two solutions, either to say that it's wholly in the hands of the prosecutor,, that he will determine what's to be made available or that the judge will look at it.

And, if I might read just one sentence from an opinion of Judge Learned Hand in which he dealt with a comparable situation, he said “there is no way in which this conflict,” that is, the conflict between the right of the Government to retain certain things from the defendant and the right of the defendant to see other types of producible documents where you have a controversy as to whether it's a producible document, there is no way in which this conflict can be resolved except by making the judge's private inspection final, subject to review.

And, of course, you have appellate review here that these documents must be sealed and sent up to the higher courts, including this Court, subject to review.

And, while it is true that this deprives the party who is denied inspection of any opportunity to dispute the judge's conclusion, that is unavoidable.

Justice Felix Frankfurter: Three of the cops -- I think, when you said that -- when you agreed that there are certain things that -- certain relevant evidence that Congress can deny to the defense, I don't think that's quite the issue.

The issue isn't whether Congress may deny certain evidence relevant to a fair trial.

The question that this statute raises is whether Congress may determine the means by determining --

Mr. Oscar H. Davis: I --

Justice Felix Frankfurter: But he has a right to say --

Mr. Oscar H. Davis: I hold --

Justice Felix Frankfurter: These are very different things.

Mr. Oscar H. Davis: I think that is -- that is what we are now talking about.

Justice Hugo L. Black: But it is different, as all court proceedings differ.

The constitution sets out a large number of things that Congress can't do, and even that courts cannot do.

It tells the courts that they must try people in certain ways to accuse a crime.

So that, it's not enough, is it, to say that Congress can determine which instrument will be used, finally and secretly, to say whether or not a defendant's rights have been accorded with?

Mr. Oscar H. Davis: But if you assume, as you -- I think you must assume, that in -- that some of these documents may not properly be producible and, therefore, are not relevant and should not be seen by the defense, then there must be some mechanism for determining that issues which does not give the defense the very thing which Congress has a right to see -- to say that they shall not see.

Justice Hugo L. Black: That's an old argument.

It's made before the Bill of Rights, was it not?

Mr. Oscar H. Davis: But it is --

Justice Hugo L. Black: In many cases.

Mr. Oscar H. Davis: It is the -- it is what happens today in relation to subpoenas.

If a subpoena is issued and the Government or the party to whom the subpoena is issued comes in and says “I don't have these documents,” the defense counsel or the potential defendant doesn't rummage through the files of the other side to see whether there is something there, the Court determines whether the return is an accurate one as to whether there is a subpoena document of this kind.

In civil cases, we have trade secrets which are kept away from the other side, at the discretion of judge, under the rules adopt by this Court.

And then, there is the question of privileges.

If a doctor is on the stand and he is asked to discuss something that occurred during the course of treatment, he can claim the privilege of the doctor-patient relationship if -- unless it's waived by the patient.

Now, it doesn't make any difference that the defendant or the other side may say “I want to hear everything that you told him, Doctor, because I think there were certain things you told that had nothing to do his treatment whatsoever.

So, therefore, I want to hear everything you did and told him with relation to his treatment because I want to figure out for myself whether what you did related to his treatment,” and that relates to the other types of privileges, too.

And so, we think that this provision that Congress adopted is not without precedent in our law, going all the way back --

Justice William J. Brennan: Well, Mr. Davis, this gets to the fact to allude the discussion you and I had yesterday.

As I understand the statute, as I read it, the prohibition against showing the other side anything deals only with those papers which the Government hands up and says “this includes something relevant in the sense that it bears and touches upon the witness' testimony, but it also includes other irrelevant material.”

Mr. Oscar H. Davis: Yes.

Justice William J. Brennan: “And, if Your Honor please, will you excise the irrelevant material?”

But, in the area we're now discussing that is involved in this case, as I understand it, that is, whether not a report is a substantially verbatim recital, certainly, the Congress did not expressly provide a like procedure --

Mr. Oscar H. Davis: That -- that is right, Mr. Justice.

Justice William J. Brennan: Well now, why, then, in that circumstance, would it be contrary to the congressional intention to construe this statute dealing with the type of statement we have here, where the issue is substantially verbatim recital and where, as I think the Government would concede, there is no question of government secrets involved, isn't it?

Mr. Oscar H. Davis: That's right.

Justice William J. Brennan: In the voir dire that -- in your discussion with Mr. Justice Frankurter, you agreed the judge in the proper case is at liberty to conduct.

Why could not the judge in that circumstance, as part of the discretion he exercises because troubled, whether or not this is a substantially verbatim recital, say to defense counsel here “you look out it”?

Would there be anything about the statute which would prevent the exercise of discretion in that way?

Mr. Oscar H. Davis: Yes, Mr. Justice.

The whole basic postulate of this statute is that certain things were not to be produced to the defendant, certain types of the documents that the --

Justice Felix Frankfurter: Well, what's with the prosecutor?

Mr. Oscar H. Davis: Well, the prosecutor had them.

Justice William J. Brennan: He has them.

Justice Felix Frankfurter: I don't mean in this case, but in the -- may the prosecutor see things that the defendant can't see?

Mr. Oscar H. Davis: Well, this statute relates only to Government witnesses, to -- in statements of Government a -- witnesses in the hands of the Prosecution.

This statute relates only to things in the hands of the Prosecution.

Justice Felix Frankfurter: He may not prosecute a man at the time they're not known in this case --

Mr. Oscar H. Davis: Well --

Justice Felix Frankfurter: Here.

Mr. Oscar H. Davis: But he is asked to produce it.

So, I -- I think that, ordinarily, he would see them, but the whole basis --

Justice Felix Frankfurter: But he may not.

I mean --

Mr. Oscar H. Davis: He may not.

Possibly --

Justice Felix Frankfurter: Have an issue he may not know about.

Mr. Oscar H. Davis: In this case, the prosecutor did not know of the existence of this and --

Justice Felix Frankfurter: You said that here, yesterday, that he did not see these documents.

Here, your argument in this case, until -- except through the courtesy --

Mr. Oscar H. Davis: To see them.

Justice Felix Frankfurter: Or whatever it is, of our Clerk.

Mr. Oscar H. Davis: That -- that's right.

And the --

Justice Potter Stewart: Incidentally, did our Clerk extend that same courtesy to the other side?

Mr. Oscar H. Davis: I -- I don't know.

I don't think so, really, since the documents are sealed.

Justice Hugo L. Black: Did you make the Clerk?

Mr. Oscar H. Davis: No sir.

Justice Hugo L. Black: I don't think they'd --

Mr. Oscar H. Davis: But the whole basis of my argument is -- the whole basis of my argument is that it would frustrate the purpose which Congress embodied in this statute.

If you allow the defense to see a document before it have been determined to be the kind of document which was producible under the statute --

Justice Felix Frankfurter: Because every defendant would ask to see it.

Mr. Oscar H. Davis: That's right, and every defendant would see more than just the particular document.

He would want to see other files, to see whether there weren't other like documents in the case.

And --

Chief Justice Earl Warren: Mr. Davis, you don't mean that this document was in no way available to you --

Mr. Oscar H. Davis: Oh, no.

Chief Justice Earl Warren: Through our Clerk.

Mr. Oscar H. Davis: No, I -- I don't mean that.

It just so happen that we didn't have it in Washington.

Chief Justice Earl Warren: Anytime you want to.

Mr. Oscar H. Davis: It -- we didn't have it in Washington.

That's --

Chief Justice Earl Warren: Yes.

Mr. Oscar H. Davis: I didn't mean to --

Justice Felix Frankfurter: All I meant here is to stress that -- the prosecutor may not know of the existence of the document which counsel for the defendant made by ferreting questions by appropriate cross-examination exist -- elicit the existence.

Mr. Oscar H. Davis: That happened in this case.

The prosecutor did not know of the existence of this document at the time the questions were asked in the trial court.

If I may, I would like to spend just --

Justice Felix Frankfurter: And I should think that in such a case, if I'm wrong in such a case, I don't know if the prosecutor should be allowed to see it.

You may ask -- you may produce -- you may be called upon to produce a document which you do not examine.

Mr. Oscar H. Davis: Well, that -- that's quite possible.

If he hasn't already seen it, I wouldn't see any particular reason why --

Justice Felix Frankfurter: Well, if he's seen it, then it's true.

Mr. Oscar H. Davis: Then, it's true.

Justice Felix Frankfurter: The statute doesn't forbid him from knowing materials in his own -- in his own preparation for a trial.

Mr. Oscar H. Davis: Yes.

Justice Felix Frankfurter: This Court has held, even in civil cases, you can't note into the other fellow's documents.

Mr. Oscar H. Davis: Well, that -- that of Hick -- that doctrine of Hickman against Taylor does show, along with the whole history of the -- of the very limited discovery in criminal cases up to -- up to now, that there has never been unlimited discovery in criminal cases.

In fact, this Court modified a Rule of Criminal Procedure, Rule 16, so as to make very, very limited discovery in criminal cases in 1944.

There is no doctrine of unlimited discovery in criminal cases in our country.

Justice Hugo L. Black: Does the rule say -- I'm not familiar with it.

Does the rule say that, in a criminal case that a prosecutor has available to him (Inaudible) that statement that may be relevant, that he can look at them and then he can present it to the judge and the other man cannot look at them, and the judge passes on it in camera?

I'm not sure.

Mr. Oscar H. Davis: No.

Justice Hugo L. Black: (Voice Overlap) --

Mr. Oscar H. Davis: But, the rule which was originally broader in scope was limited only to materials which had been seized from the defendant, taken from the defendant or from other person by process.

It was limited specifically by this Court to that situation.

If I can spend, if I may, the remaining minutes on the question of harmless error, because we think that's an important aspect of this case.

I should try to make it clear to the Court, because I don't think I have, that, after Carlin's interview with the witness, there were open -- I mean, with the agents, there were open-Senate hearings at which Carlin appeared and testified, as did many of the other witnesses in this case.

Those open-Senate hearings were available to the defendant in these cases and were used on cross-examination of Carlin and of other witnesses.

So, they were not wholly without means of testing his credibility at the trial.

Chief Justice Earl Warren: Are you going to argue, from what was in this document, that it's harmless error?

Mr. Oscar H. Davis: No, sir.

I'm not going to talk about the contents of document.

I'm going to talk about the other evidence in the case.

I'm -- what I'm going to argue now as the petitioner Rubin who was the one petitioner as to whom there was the most overwhelming proof of guilt.

My time has expired.

Chief Justice Earl Warren: Well, there's some time at some of these other cases.

Mr. Oscar H. Davis: Not on this issue of harmless error in this case, sir.

Justice Felix Frankfurter: The commentary in --

Mr. Oscar H. Davis: I --

Justice Felix Frankfurter: Doesn't it arrive in the --

Mr. Oscar H. Davis: Yes, but I was going to talk about the particular facts of this case.

Well, I will have to leave it to the brief.

Chief Justice Earl Warren: Well, suppose you state your general proposition.

Mr. Oscar H. Davis: Our general proposition, really, if I may state, are two things.

Chief Justice Earl Warren: Yes.

Mr. Oscar H. Davis: One is that, as to Rubin, there was overwhelming evidence of guilt by many witnesses, not only -- Carlin was a very secondary witness with relation to Rubin.

All of Carlin's testimony -- incriminating testimony was corroborated by other witnesses in the case, either Levi or the bookkeeper or other people, so that, there was nothing that Carlin said which stood on Carlin's testimony alone.

And, all -- in fact, the testimony of Carlin was, in part, corroborated by the defendant Rubin himself and by another defendant, Ades, who did take the stand.

Now, that's the summary with relation to Rubin.

As to Wool, I would say that Carlin did not implicate him at all.

He did not even come into the conspiracy admittedly until a period after Carlin had left the Office of the Bonita Company.

And, the only last thing I would like to say as to the argument that the counsel were deterred from asking for statements from other witnesses by the ruling of Judge Kaufman, two things, if I might.

Judge Kaufman said that, under a very slight suggestion of inconsistency, under the then-prevailing Second Circuit rule, he would order the production of the document.

They never made an effort to show with respect to any other witnesses, except one, as to whether there were prior inconsistent statements.

As to Porreca, one of the Prosecution witnesses, they got him to admit that he had made a prior inconsistent statement and they did not ask for the statement, so that even clearly on the Second Circuit rule and under Judge Kaufman's ruling, that would have been producible, but they did not ask for a correct statement.

And, so, we think that there is really no basis for saying that Judge Kaufman's ruling as to Carlin permeated the trial in the sense that it deterred the petitioner's counsel from asking for statements with respect to other words.

Thank you, Mr. Chief Justice.

Chief Justice Earl Warren: Mr. Sullivan, I understand you're to conclude for -- in number 437.

Argument of John T. Sullivan

Mr. John T. Sullivan: Mr. Chief Justice, I would like to ask the indulgence of the Court to afford Mr. Eben the opportunity to use most of my remaining time.

I think I would like to use five minutes --

Chief Justice Earl Warren: You may --

Mr. John T. Sullivan: And --

Chief Justice Earl Warren: -- you may divide your time any way you want.

Mr. John T. Sullivan: Thank you.

Chief Justice Earl Warren: The cases are consolidated.

Mr. John T. Sullivan: If the Court please, in response to what Mr. Davis just said, Judge Kaufman ruled, not only that he wouldn't have the statement produced, he ruled that before he would even read the statement that I had to show it had inconsistency.

And, of course, his ruling was so absolutely clear-cut that I couldn't possibly insult the Court further by pressing the objection over and over.

Now, if the Court please, yesterday, of course, I tried to, rather laboriously, go through the facts to meet the contention of Mr. Davis that this is overwhelming.

I dispute that with every fiber of my makeup.

This was a clear-cut case of credibility of a few key witnesses.

That's all the case amounted to.

The decision of the c -- the decision of the jury held that Pollock was acquitted.

Pollock was acquitted, although Levi had positively identified him as receiving the money.

Therefore, the jury didn't believe Pollock, but the jury did believe Carlin.

Carlin was a very important witness, and I say to this Court that, if the record was read a thousand times, there never could be any overwhelming interpretation placed upon it.

Now, if the -- If Your Honor please, I wish also to address myself to the question of relevance.

In the question of relevance, it is my understanding that I do not have to prove when I ask for the production of a statement that I have to show competence, that I have to show that it's admissible in evidence, that I have to show that it doesn't violate the hearsay rule.

I'm seeking these -- these papers merely to use them to impeach the credibility.

They may furnish me one little portion of a jigsaw puzzle which will really bring the truth out in the criminal case.

Why should I have to be dependent upon that charity of the United States Attorney, upon his honor and his integrity?

And, I must say, I never met one who didn't have those qualities, but why must we be faced with such a thing, that we who defend people in the courts that we have to be dependent upon the United States Attorney, and even upon the bench, that we may not see a document to save a man from the destruction of his life?

If the Court please, I must say that, after listening to the argument of Mr. Davis, I can only conclude that the -- he has many different sides to his argument.

His -- he says that, on account of the confusion of the Jencks Rule with the law of courts, that that's why they had to pass a new statute.

He says that, because the -- because they wanted to be sure to codify the statute, he actually -- he actually argues in his brief, in my opinion as I read it, that so enamored was the Department of Justice and the courts or, rather, the Congress with the Jencks decision that they decided to codify it, to give a stat -- so that subsequent changes in the personnel in this Court wouldn't affect this -- the wonderful rationale of that.

I submit to Your Honor that that is sheer hypocrisy.

I say that the -- what they wanted to do was overrule and get him off the books.

That's the purpose and, I say, that this statute which is passed in such a hurry, which was rushed through the Congress, your congressional history is worthless, worthless to determined the real truth.

And, the real truth is that it was directed strictly against us and I say, in conclusion, that it is my opinion that this statute and the application of this statute, in this case, constitutes a direct unconstitutional violation of Amendment Five and Six of the constitution.

I thank you for your attention.

Chief Justice Earl Warren: Mr. Eben.

Argument of Anthony Bradley Eben

Mr. Anthony Bradley Eben: Thank you, Your Honor.

May it please the Court.

I would, first, like to reply to Mr. Justice Brennan's question put to my brother Davis here.

In order to make the record, I went to the Clerk's Office this morning and inquired for the sealed envelope and asked to examine its contents.

I was not shown the -- the envelope.

We do not yet know what was in it.

Yesterday, during the course of the Government's argument and also during my own, my antenna, more or less, picked up a message from a segment of the Court that, conceivably, here, there may be some error but that it does not apply to the petitioner Lev because he had filed no objection in the first place and his then-attorney had not developed the demand for production as made by Mr. Sullivan.

And, if such a view exists, I would like to say that the Rubin -- rather, the Carlin testimony became very admissible against Mr. Lev.

Therefore, any impeachment of it would have been of great help to Mr. Lev in possibly obtaining an acquittal.

The reason that it was admitted, the reason that the evidence was admissible against Lev, was because, although there may have been two conspiracies described by the Government as the Bonita conspiracy and the White Hat conspiracy and that Lev was involved only in the White Hat conspiracy and was insulated from the Bonita conspiracy by the obstructions of the Court that, therefore, the Carlin testimony was not admissible against him.

I would point out, if that thought is in the minds of any member of the Court, that the instructions of the trial court were, and they were so determined by the Court of Appeals, that there was one continuous conspiracy as to all defendants expect Lev, and he thereupon instructed that the acts of declarations and omissions of any conspirator during the life of that conspiracy were admissible against any other person who, at anytime, entered into the conspiracy.

So, there can be no question in my mind but one, Lev was seriously harmed by the error, if any.

Justice Felix Frankfurter: I'm not sure I understood you.

You just said that the judge's charge restricted testimony so as not to be applicable to Lev, or did I misunderstand you?

Mr. Anthony Bradley Eben: No, you understood me correctly.

The charge, Mr. Justice Frankfurter, was, in reality, a monstrosity.

It was impossible to understand.

It went through 96 pages of the typewritten record.

It -- in some places, it referred to two conspiracies then, in other places, to one conspiracy.

We raised the question of variance in our petition for certiorari and, unfortunately, from our standpoint, the Court did not grant certiorari on those questions.

But, finally, the jury came back, after having been out some-24 or 36 hours, and asked whether or not one conspiracy was related to the other, and the judge gave an entirely inclusive instruction on it that I, as a lawyer, have a great deal of difficulty to understand.

I don't understand it, I will say to the Court quite frankly.

But, in any event, from it, it became clearer and, from eight or nine other instructions, it became clear that Lev could be chargeable in the White Hat conspiracy with the acts of Rubin who was his co-conspirator concededly in the White Hat conspiracy, even if Lev was not in the Bonita conspiracy, and the Carlin testimony related directly to Rubin.

Justice Felix Frankfurter: Was there any --

Mr. Anthony Bradley Eben: Therefore --

Justice Felix Frankfurter: -- was there any specific restriction of Carlin's testimony in the course of the trial?

Mr. Anthony Bradley Eben: No, sir.

No, sir.

Justice Felix Frankfurter: But merely in the final charge.

Mr. Anthony Bradley Eben: That's right.

Justice Felix Frankfurter: Was there a specific restriction of Carlin's testimony?

Mr. Anthony Bradley Eben: There was no restriction of Carlin's testimony as such.

Justice Felix Frankfurter: Well, as such, then --

Mr. Anthony Bradley Eben: As such.

Justice Felix Frankfurter: It must have been included in some omnibus restriction, was it?

Mr. Anthony Bradley Eben: Yes, in this sense, that the Court told the jury that Lev was not involved in the Bonita conspiracy and was involved only in the White Hat conspiracy.

But, as I've just pointed out, so was Rubin involved in the White Hat conspiracy and, if the Carlin testimony was admissible against Rubin, as it concededly was, then Lev was stuck with it under the familiar rules governing the acts and declarations of conspirators.

Justice Felix Frankfurter: As you probably know, I have a good deal of sympathy with complaints against a dragnet character of conspiracy charges, but that isn't before us.

It was before the Court of Appeals, and what you are now suggesting is that the confusion attributable to two conspiracies which, in fact, might be interpretable as one would have made it difficult for the jury to segregate Carlin's testimony so as to allocate it in part to White Hat and in part to Bonita.

That's really what it gets down to, isn't that right?

Mr. Anthony Bradley Eben: Yes, the Court of Appeals said that and the trial court attempted to do that, but the Court of Appeals admitted that the error was in there.

They called it error, but they called it harmless error.

In my opinion, I think it was a most prejudicial type of error to permit the jury to consider, as it must under this Court's decision in the Paoli case, this great mass of evidence relative to bribery and corruption in the Bonita conspiracy against Lev.

I think a very unjust result --

Justice Felix Frankfurter: Yes, but --

Mr. Anthony Bradley Eben: Came to mind.

Justice Felix Frankfurter: My difficulty was -- my difficulty is to the openness of this question on our limited cert.

That's my difficulty.

Mr. Anthony Bradley Eben: Oh, only because the question has been raised here as to whether or not this error has any application to Lev in any instance.

Justice Felix Frankfurter: I understand that.

Mr. Anthony Bradley Eben: The Government -- the Government, I thought --

Justice Felix Frankfurter: The judge certainly -- the trial court certainly told the jury they shouldn't consider a certain body of evidence as applicable to Lev.

That's right, isn't it?

Mr. Anthony Bradley Eben: It just said, in this fashion, that he was only in the White Hat conspiracy, but that all acts and declarations of other conspirators were not to be used against him.

Justice Felix Frankfurter: And you ask us to -- you ask us to read the record that, in fact, there was only one conspiracy.

It was so blended that you couldn't segregate it when we specifically refused to take that question.

Mr. Anthony Bradley Eben: Oh, I'm not arguing that and I certainly, Your Honor, do not want to be understood as trying to inject it here.

It's only here and against the -- I only argue it to show that the Carlin -- the error as to Rubin goes over as to Lev.

I don't have a great deal of time left and I'd like to address myself, very briefly, to this question as to whether the statute is exclusive or not.

The Government, yesterday, expressed some surprise that we would even argue it and I am surprised that the Government's surprised since it's point one in our opening brief here.

And, we again deal with it in a reply brief.

The Government says, as I follow Mr. Davis' argument, that Senate Report 891 describes the procedure to be exclusive, and that's quite true, I've examined the report, but that report was handed into the Senate or handed up by the Subcommittee of the Senate long before there were any amendments to the suggested legislation.

And, when you examine the amendments, it becomes very clear and very obvious that Congress was saying and the Senate in its debates was saying that it was not to be exclusive.

I respectfully direct the Court's attention to the fact that when the Department of Justice sent up the bill, it intended it to be exclusive.

But, Senator O'Maley and some of his colleagues were able to detect that particular record by the Department of Justice, and there was an exchange of letters between the then-Acting Attorney General and Senator O'Maley.

And, Senator O'Maley then exposed, if I may use the expression, the desire on the part of the Department of Justice to do away with the Rules of Pre -- Federal Criminal Procedure of that particular point.

And, there is a discussion in -- by Professor Keith in the Catholic University Law Review, which I refer to in my brief, which goes into that extensively.

In any event, once the Senate was able to detect what the Department of Justice was up to at that particular time, it really amendment that first section and it knocked out the provision which, as I recall, was somewhat this language that there should -- that the statute governed no claim -- no rule of court or of criminal procedure to the contrary, notwithstanding, and that went out very fast for the Senate understands it.

Justice Felix Frankfurter: Well, isn't it a fact, though, in the event that the provision in the Rule -- in the Federal Rules of Criminal Procedure relating to discovery is not co-extended or doesn't touch the same subject matter as the subject matter of this statute.

In other words, there's discovery as to all sorts of thing having nothing to do with laying the foundation for impeachment.

Mr. Anthony Bradley Eben: No, I would say that, under Rule 17 (c), under the prior case, I believe, you are entitled to documents such as we're discussing here.

Justice Felix Frankfurter: I'm not saying that, under the Rule of -- that was the disputed controversies I remember reading contemporaneously.

That, today, is a great deal of confusion, if I may say so, in the minds of legislators as to what the rule of discovery was and they did not want this statute explicitly to impair the continuance of the rule regarding discovery.

Mr. Anthony Bradley Eben: Precisely.

Justice Felix Frankfurter: That's a very different subject matter.

Mr. Anthony Bradley Eben: Precisely, and I agree with Your Honor, which show then that they did not intend to interfere with the operation of the Federal Rules of Criminal Procedure if they had the application, and they so wrote it in their subsequent amendment to put in the word “if,” and then, when the bill came out of conference, the House had bought completely the Department of Justice version.

When it came out of conference, they moved it back then to the Senate version and struck all reference to the Federal Rules of Criminal Procedure or to the procedure as outlined in the subsequent paragraph (b).

Justice Felix Frankfurter: But that didn't -- doesn't mean that they passed the statute which, by non-statement, at the same time, destroyed the statute that they passed.

Mr. Anthony Bradley Eben: Well, I respectfully --

Justice Felix Frankfurter: So, that would be the effect of your argument.

That would be the effect, the necessary effect, that every time counsel wanted to prove that it was not within what you've deemed be nonexclusive provision, they would ask for the document and no counsel would be so stupid as not to ask for the document.

Mr. Anthony Bradley Eben: That -- I would like to respond but I better pass onto something else, if I'm going to finish my argument.

I would like to call the Court's attention to what was decided in the case itself, and I dragged out the record in here this morning and it is very brief.

And, I would like to call the Court's attention to the examination of the witness Ford whose testimony, of course, was considered in Jenks, and this is precisely the testimony to which this Court referred.

Ford was asked “After you made your contact with the FBI, did you give them information concerning activities going on before you made contact with the FBI?”

Answer, “Yes, because that is what led me to the FBI.”

“And did you make those reports in writing?”

Answer, “Some of them in writing and some of them oral.”

Question, “When you gave oral reports, were they taken down by someone?”

“I think some notes were taken.I think some notes were taken.”

Question, “And after you gave the oral reports and the notes were taken, was something typed up for you to sign?”

“No.”

“Do you recall giving a written report to the FBI concerning the foundling convention of the progressive party in July of 1948?”

“No.”

Question, “But your recollection is that you did not give such a report?”

Answer, “My recollection is that I told the FBI exactly what went on at the convention and some other events preceding that.”

“And was that written down?”

“Did I write it?”

“First, did you write it then?”

“I don't recall.”

“You don't recall?”

“I don't recall that I wrote it down specifically, but I am pretty sure that I didn't.”

“Did someone write it down as you told it to them?

As you told it to them?”

“I think some notes were taken.”

“Isn't it a fact that you dictated something in the presence of a stenographer on that convention?”

“No.”

“Weren't you asked questions and didn't you give answers which were taken down by a stenographer?”

“No.”

“Your recollection about that is precise, is it?

You are sure that you did -- that you did not either dictate a statement or answer questions which were taken down by a shorthand reporter?”

Answer, “I am positive.”

Now, I submit, again, respectfully to the Court that this Court decided in Jenks that notes, just notes of what a witness said which, quite obviously, might not be a substantially verbatim statement as to what he said, was admissible.

I say that, in my opinion, the Court was holding that inadmissible documents are producible if relevant under the definition as given by the Court in Jenks.

Now, I have listened here to Brother Davis and I have read the congressional debates over and over again, and there are pious avowals by all of the legislators and by the Government here that nobody indented to touch Jenks by this legislation, that all that they wanted to do is to codify it.

Well, if what the Government is contending for here is so, they certainly went way past any codification.

In fact, they put Jenks right out of -- out of the business.

If this Court holds that the statute is exclusive and if this Court holds that it's constitutional, I, for the life of me, cannot see the objection by the Government to the production of any report of what a witness said.

There is no fishing expedition involved in this case.

The precise report was identified in the trial court.

And I do not see why the Government should not produce it.

In fact, outside of Jenks, it seems to me that Berger, a famous decision of this Court, requires, as to -- as to the Canons of Ethics that a prosecutor turned over to a defendant, any material which he may have, any evidence, if you will, which he may have which is helpful to the defendant.

And I think, really, that was the philosophy of this Court in handing down Jenks.

Finally, I would like to say that some remark was made here yesterday that -- as to the Lutwak case.

I appeared before the Court and argued that particular case and we lost it on a 5-3 decision.

And, I think Mr. Davis said that the majority opinion, applying the -- the language here, stated that the record shrieked of error.

And, I would like to point out, before I conclude, that Mr. Justice Frankfurter and Mr. Justice Black and Mr. Justice Jackson dissented from the theory that the record did shriek of error.

And I say --

Justice Felix Frankfurter: It might have shrieked then you -- we might yet have dissented.

Mr. Anthony Bradley Eben: Excuse me, Your Honor?

Justice Felix Frankfurter: It might have shrieked then we might yet have dissented.[Laughter]

Mr. Anthony Bradley Eben: Thank you, very much.