NEEDELMAN v. UNITED STATES

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Argument of Herbert A. Warren

Chief Justice Earl Warren: Number 278, Harry Needelman, Petitioner, versus United States.

Mr. Warren.

Mr. Herbert A. Warren: Mr. Chief Justice, may it please the Court.

This case is before the Court upon a writ of certiorari to the Court of Appeals for the Fifth Circuit.

The questions presented, stated briefly are as follows.

First, whether the contemporaneous notes of a government agent made during the course of his investigation are producible under the statute, Title 18, Section 3500 where that government agent takes the witness stand and testifies as to his investigation as a witness for the Government.

There's also presented the question as to whether or not the rule announced by this Court in Goldman versus United States to the effect that the trial judge has the discretion to deny production and inspection of the contemporaneous notes and memoranda of government agents where the government agents have refreshed their recollection from such notes but have not done so on the witness stand, whether such rule has been overruled by this Court in the case of Jencks versus United States.

As an adjunct to the questions, there's also presented the question of whether or not the action of the trial court in this particular case in denying production of the contemporaneous notes of the government agent could be characterized as harmless error.

As to the facts of the case, the petitioner who has a position was first indicted along with a druggist on a charge of conspiracy to violate the provisions of Title 26, Section 4705 (a), that is a conspiracy to sell certain narcotic drugs without the requisite written orders as prescribed by the statute.

That case was tried and resulted in a mistrial.

After the mistrial, a second indictment was returned against the petitioner solely naming him in 15 substantive counts charging in each of the counts that he sold or caused to be sold the narcotics not in the manner prescribed by the statute.

The two cases were consolidated for trial.

After the trial on the conspiracy charge, but prior to the trial on the consolidated cases, counsel for the petitioner moved the court on order requiring the Government to produce certain documents and included in that motion a request for the contemporaneous notes of the narcotic agent, Rudd setting forth in the motion that the Agent Rudd had testified at the first trial and had -- and his testimony shown that the notes related to his investigation and as to the events which he's testified to in the first trial.

The motion was denied in all material respects as far as this case is now concerned.

The case proceeded to trial.

Justice John M. Harlan: And now that motion is not an issue here, is it?

Mr. Herbert A. Warren: It is not an issue here although I might state in passing that it is my belief that the motion made would come under the provisions of the statute, but it's solely presented to the Court today.

We are relying upon the fact that the motion was renewed during the course of the second trial.

The case proceeded to trial at the close of the Government's case.

The court granted a motion for judgment of acquittal as to the conspiracy cases.

At the end of the -- all of the evidence in the case, the petitioner again moved for a judgment of -- of acquittal.

The trial court denied the motion commenting that in his view, it was a very slender case, but he thought that there was enough to go to the jury.

The jury returned a verdict of guilty as to each of the 15 substantive counts.

A motion for new trial was made and was granted as to five of the counts which were substantly -- subsequently dismissed by the Government.

During the course of the trial, the agent -- narcotic agent Rudd while on the stand testified on cross-examination that he had made copious notes during the course of his investigation and that he had refreshed his recollection from such notes prior to coming to court to testify.

There was -- after Agent Rudd had testified on direct, cross and redirect, a recess was taken.

After the recess, this appears in the record.

The court makes the statement, “I will deny the request for the notes because they may concern many things.

You may see the case report.”

The case proceeded on as I've said to the conclusion and a finding of guilty by the verdict as to each and by the jury as to each of the 15 substantive counts.

Justice Felix Frankfurter: Would you mind at this point to state what the case before was or is?

Mr. Herbert A. Warren: Yes, sir.

The case report has been filed by the Government as an exhibit in this case.

Now, the case report was not made a part of the evidence at the trial.

I did not try the case, but I have consulted counsel who did represent the defendant.

I have showed him the transcript of record with the case report as filed by the Government.

He says to the best of his recollection that is what was handed him -- to him.

Chief Justice Earl Warren: You mean the case -- when you say filed by the Government, did counsel for defendant have this set of trials?

Mr. Herbert A. Warren: It was presented to him at trial.

Yes, sir.

Justice Felix Frankfurter: What -- but what was it?

What was -- can you tell us that?

Mr. Herbert A. Warren: Yes.

Yes, sir.

It appears in the record starting at page 138.

It appears that it is in effect a trial brief of the testimony to be presented by the various witnesses in the case.

It is composed by narcotic agent Rudd signed by him and agent Waters and it relates as the testimony that the prospective witnesses for the Government will give when they are called.

Justice Felix Frankfurter: Were this elicited through a bill of -- for a bill of particulars or how did it --

Mr. Herbert A. Warren: No, sir, it arose --

Justice Felix Frankfurter: How -- what was the vehicle for bringing it to the attention of counsel for defendant?

Mr. Herbert A. Warren: The -- the counsel for the defendant had requested the contemporaneous notes and memoranda of the agent Rudd.

Justice Felix Frankfurter: Yes, I understand that.

Mr. Herbert A. Warren: The court said, “I will deny your request for the notes.

You may see the case report.”

Then --

Justice Felix Frankfurter: So, how did the judge know there was a case report?

Mr. Herbert A. Warren: I don't know, sir.

Justice Felix Frankfurter: That presumes that the matter must have been somewhere of it before the judge and in -- and certainly --

Mr. Herbert A. Warren: Yes, sir.

Justice Felix Frankfurter: -- was a consideration in his denial of the motion for the -- for the refreshing notes.

Is that right?

Mr. Herbert A. Warren: That's right, sir and that is not reported in the record.

Justice Felix Frankfurter: Now, can you tell me what use if any was made of the case report by defendant's counsel?

Mr. Herbert A. Warren: None.

Justice Felix Frankfurter: None?

Mr. Herbert A. Warren: None.

It proved absolutely useless.

The record will reflect that there is no cross-examination of the agent Rudd based upon anything that came from the case report.

Justice Felix Frankfurter: You can't say it's useless if it simply didn't think served any of his purposes?

Mr. Herbert A. Warren: That's right, sir.

And it was not used as far as the record here reflects.

Justice William J. Brennan: Does the record indicate whether the notes, request to which was made were examined by the trial judge?

Mr. Herbert A. Warren: No, sir.

We must assume that they were not because the judge said, ”That they may concern many things.”

Justice William J. Brennan: It would appear that this case report purported it to be prepared from any notes?

Mr. Herbert A. Warren: No, sir I cannot say that it does.

The Government does contend that it does show that it was prepared from the contemporaneous notes but I cannot say that it was because I've never seen the notes.

The trial judge has never seen them and they were not preserved in the record.

Justice Felix Frankfurter: So we don't know anything about this.

All -- I mean as far as the record shows, is there -- well, let me ask this question.

Is there anything in the record that tells us more, that tells us anything about the notes, the nature of -- except the nature of how they were made and for what purpose, what the judge's knowledge was or wasn't with reference to the notes, what the judge's knowledge was or wasn't with reference to the case report on the basis on which he ruled that you may have seen the case report?

Is there anything in the record?

Mr. Herbert A. Warren: All we have in the record is the motion for production made between the two trials where the defense asked for the contemporaneous note of the Agent Rudd --

Justice Felix Frankfurter: Yes.

Mr. Herbert A. Warren: -- specifying in the motion that they had been referred to in the prior case.

That they did relate to the testimony of the Agent Rudd.

Then we have the testimony of the Agent Rudd that he did make copious notes during the course --

Justice Felix Frankfurter: Yes.

Mr. Herbert A. Warren: -- of his investigation and he did refer to those notes to refresh his recollection.

Then we have solely the statement out of the court that he would deny the request for the notes because they may involve many things, you may see the case report.

That is all there is.

Justice Felix Frankfurter: But we don't know -- we don't know anything except those -- there are those un-illuminating few words as to what went on as this -- at the short recess.

Mr. Herbert A. Warren: No, sir.

Justice Felix Frankfurter: -- why he ruled against the motion to produce the notes and why he said you may have this -- the case report, the presentation of which or the projection of which into the case we know nothing about.

Is that right?

Mr. Herbert A. Warren: That's right, sir.

Justice John M. Harlan: Or admit -- does it appear that the judge said they could have the case report?

Mr. Herbert A. Warren: Yes.

Justice Felix Frankfurter: Yes.

Mr. Herbert A. Warren: Court has --

Justice John M. Harlan: What page is that?

Mr. Herbert A. Warren: Here it is.

Justice Felix Frankfurter: Page 93.

Mr. Herbert A. Warren: 93, sir.

“I will deny the request for the notes, because they may involve many things.

You may see the case report.”

Justice John M. Harlan: Yes.

Mr. Herbert A. Warren: Now, with reference to the case report, I would like to point out to the Court that it is dated October 31st, 1955.

The first indictment in this case as appears from page 1 of the record was returned on October the 18th, 1955.

So the indictment had already been returned before the case report was ever prepared.

Now, the primary issue as far as the -- the author Anderson saw the petitioner in this case turned upon his good faith and dispensing the prescriptions.

It was the evidence of the Government to prove that he had gone on a vacation to Europe that he had left numerous signed prescriptions with his nurses, with instructions to dispense them to certain persons upon solely the payment of a certain fee.

Dr.Needelman denied giving any such request.

It was his evidence that they had been left there because he had two doctors assisting him in his practice to its -- yet had not been licensed to practice and that the prescriptions were to be dispensed only upon their say so.

One of the main points as far as his good faith is concerned is that the agent Rudd in his testimony stated that when he interviewed the petitioner, the petitioner stated to him that he knew that the persons involved were narcotic addicts.

Dr. Needelman denied that he ever made any such state -- statement and denied that they were in fact narcotic addicts.

Now, as far as the first question is concerned, it is our position that the contemporaneous notes of an agent made during the course of his investigation are producible under the statute when the agent takes the stand and testifies as a witness for the Government.

Justice Felix Frankfurter: What -- what is there in the record or what are the -- what references can you give us in the record which indicate the nature of these notes in the sense of when they were made, what they purported to be, etcetera, etcetera?

Mr. Herbert A. Warren: The cross-examination of agent Rudd where he stated that the --

Justice William J. Brennan: What page is this?

Mr. Herbert A. Warren: Page 88.

Question, “You made copious notes did you not at the time you started the investigation of this case and made several notes?”

“Yes, sir.”

“And you have refreshed your recollection from the notes that you made, refreshed your memory.

Before coming to testify, you refreshed your memory by reference to those notes, did you not?”

That is on page 88, a little of two-thirds all the way down the page.

Justice Felix Frankfurter: “Well, you made copious notes at the time you started the investigation of this case.”

Does that state notes of whose -- whose statements or what statements or?

Mr. Herbert A. Warren: No, sir.

And in our view it makes no difference.

If the agent takes the witness stand and testify --

Justice Felix Frankfurter: It would make a lot of difference under the statute.

Mr. Herbert A. Warren: The -- I'll say this that --

Justice Felix Frankfurter: It makes all the difference in the world under the statute.

Mr. Herbert A. Warren: The notes must be relevant to his testimony.

Justice Felix Frankfurter: Pardon me?

Mr. Herbert A. Warren: The notes must be relevant to the facts that he testified to at the trial.

Justice Felix Frankfurter: And I feel, indicates the relation between the -- the person from whom statements or the references statements are made and the recording.

Mr. Herbert A. Warren: We're not seeking production of the notes as in -- as a statement of a third person, as was the case in the Palermo case recently decided by this Court.

We're taking the position that the agent himself is the witness.

These notes which he made are sought as his own statement, not as a statement of some other person.

Justice Felix Frankfurter: Well, that's why it's not within 3500?

Mr. Herbert A. Warren: I think very definitely it is, Your Honor, but then the language --

Justice Felix Frankfurter: It was made by a government witness or prospective to an agent.

You mean these are notes made -- he is the witness and he makes these notes to himself about himself.

Mr. Herbert A. Warren: He makes the notes concerning the events that he's testified to at the trial.

Justice Felix Frankfurter: Yes, I know but you have to read the statute.

Mr. Herbert A. Warren: Alright, sir.

If you'll look --

Justice Felix Frankfurter: Made by government witness or prospective witness through an agent of the Government --

Mr. Herbert A. Warren: How --

Justice Felix Frankfurter: -- which means that the agent takes down a statement made to him by somebody else.

Mr. Herbert A. Warren: That is the language of Subsection (a) of the statute but that restriction is not placed in Subsection (b) of the statutes.

Subsection (b) says only after a witness called by the United States has testified on direct examination.

The court shall in a motion of the defendant order the United States to produce any statement they see in it.

Justice Felix Frankfurter: Of the witness (Voice overlap) --

Mr. Herbert A. Warren: Of the witness, yes sir, as hereinafter defined.

Now, I'll direct your attention to the provisions of Subsection (e), and the interesting fact that in defining the term “statement” under Subsection (e), it refers solely to Subsections (b), (c), and (d) and does not refer to Subsection (a) which is limited solely --

Justice Felix Frankfurter: But it dealt with all that in -- in Palermo.

Mr. Herbert A. Warren: Yes sir, you dealt with -- that in Palermo as far as a statement given by a witness to a Government agent where the witness is on the stand and you're seeking from the Government, the statement which that particular witness gave to a Government agent.

Justice Felix Frankfurter: And we've also --

Mr. Herbert A. Warren: That is --

Justice Felix Frankfurter: -- said that that's an exclusive statute and not a -- and not a puzzle statute.

Mr. Herbert A. Warren: Yes.

You said it was an exclusive statute so far as statements given by Government witnesses to Government agents is concerned.

But that is not the situation here --

Justice Felix Frankfurter: I'm not dealing how it is with the other question outside of the statute?

I'm -- my questions are restricted to --

Mr. Herbert A. Warren: Yes sir.

Justice Felix Frankfurter: -- the application of the statute.

Mr. Herbert A. Warren: Right, sir.

Justice Felix Frankfurter: And I speak on the face of it, it doesn't apply to this situation.

Mr. Herbert A. Warren: And it's our contention that under Subsection (b) and the other portions of the statute that it does apply and it is within the literal language of the statute.

May I suggest that the reason for Subsection (a) is to show that Congress is adopting a policy so that it would leave no doubt but that statements given by a witness to the Government are then subject to an -- claim of evidentiary privilege by the Government.

The fact that they are really the statement of the witness might lead you to think that the evidentiary privilege cannot be granted.

Congress makes that clear.

If that statement of the witness is transmitted to the Government and becomes in the possession of the Government, the claim can then be asserted.

But under Subsection (b) --

Justice Felix Frankfurter: But these statements weren't delivered to the Government or to anybody, even notes, like the notes that you and I make if we hear something or --

Mr. Herbert A. Warren: That's right.

Justice Felix Frankfurter: -- before we hear something with reference to hearing it, even notes to ourselves --

Mr. Herbert A. Warren: Right, sir.

Justice Felix Frankfurter: -- by calling yourself up on the telephone.

Mr. Herbert A. Warren: Right, sir.

And --

Justice William J. Brennan: Mr. Warren, let me see if I follow you.

I would -- I gather you're saying that the literal language of Subdivision (b) after a witness called by the United States has testified on direct examination.

The court shall in the motion of the defendant order the United States to use any statement and they don't have to find of the witness in the possession of the United States which relates to the subject matter as to which the witness has testified.

Mr. Herbert A. Warren: Yes, sir.

Justice William J. Brennan: On the face of it, it includes these notes.

Mr. Herbert A. Warren: Yes sir.

Justice William J. Brennan: And that statement is defined in (e) (1), a written statement made by said witness and signed or otherwise adopted or approved by him.

Mr. Herbert A. Warren: Right, sir.

Justice William J. Brennan: Also literally applied at least --

Mr. Herbert A. Warren: Right, sir.

Justice William J. Brennan: -- would include these notes.

Is that your argument?

Mr. Herbert A. Warren: That is my argument.

Yes, sir.

And now --

Justice Felix Frankfurter: That means any estimate, any -- any characterization, any profiles that the Government agent have to having a very good impression with somebody makes -- makes for himself -- to himself, as to the piece of literature comes within the Jencks Act, is that it?

Mr. Herbert A. Warren: That is my position as far as the first point is --

Justice Hugo L. Black: Was this an essay?

Mr. Herbert A. Warren: I beg your pardon, sir?

Justice Hugo L. Black: Was this an essay or was it supposed to be a statement of what a witness had told him?

Justice Felix Frankfurter: No, no, no.

Mr. Herbert A. Warren: There was notes --

Justice Felix Frankfurter: It wasn't that, was it?

Mr. Herbert A. Warren: His recordings of the events that transpired during the course of his investigation.

Justice Felix Frankfurter: Where was does statement, where does any evidence say that?

Mr. Herbert A. Warren: I cannot --

Justice Felix Frankfurter: If these were recordings of what the witness told him.

Mr. Herbert A. Warren: When I used the word recording I mean the fact that he made notes which constitute recordings.

Justice Felix Frankfurter: But you don't know what about what because it says he made copious notes at the time he started the investigation.

It doesn't say he made notes of what, Dr. Needelman told him.

Mr. Herbert A. Warren: I'll admit that if -- the notes maybe entirely irrelevant but that is no basis for denying their production under the statute.

Justice Felix Frankfurter: Well, I understand that.

All I'm saying is there's nothing in the record to indicate that these were recordings of statements made to the agent by Dr.Needelman, is that correct?

Mr. Herbert A. Warren: That is correct, sir.

Justice Hugo L. Black: What was he testifying about?

Mr. Herbert A. Warren: He was testifying as to his conversation with Dr. Needleman primarily.

Justice Hugo L. Black: And what did you say he was using the notes for?

Mr. Herbert A. Warren: He said that he had refreshed his recollection before coming to testify.

Justice Hugo L. Black: To testify and he was testifying, was it irrelevant testimony in the case?

Mr. Herbert A. Warren: Yes, sir.

Justice Hugo L. Black: And -- and you asked that the memorandum he had made from which he was refreshing his recollection as to the testimony which he gave.

Mr. Herbert A. Warren: That is correct, sir.

Justice Felix Frankfurter: And for all you know, the notes might be, this is my child's birthday and that's why I've fixed the date in which I talked with Needleman, is that right?

Mr. Herbert A. Warren: That is correct and there will be --

Justice William J. Brennan: Now he presently testifies that.

Justice Hugo L. Black: Is there anyway you can find out about that except to get the notes?

Mr. Herbert A. Warren: No, sir.

Justice William J. Brennan: That's the point.

Mr. Herbert A. Warren: That's the entire point of it.

We don't know but under the statute, and the statute was designed to prevent such a situation by -- first of all, all we have to show is that he did make a prior statement, made notes which are irrelevant to his testimony.

We asked for a production of those notes.

Then the Government must take affirmative action and say the notes are not relevant to what the witness has testified to.

Justice Felix Frankfurter: But before you come to that, the statute lays down what kind of recordings or what they must be.

Mr. Herbert A. Warren: Yes, sir.

And I -- under the literal language of (b), it is our position that the notes of the agent --

Justice William J. Brennan: I suppose if he wrote them in his own handwriting, he must have approved.

Mr. Herbert A. Warren: Absolutely, and the fact that he referred to them and refreshed his recollection is a further indication that he did adopt them and approved them as being his own.

Justice Hugo L. Black: Well, if they were not relevant to what testimony he is giving, what right do the Government have to let him refresh his recollection from something that had nothing to do with the case?

Mr. Herbert A. Warren: That's right, sir.

The fact remains that he did refresh his recollection.

Justice Charles E. Whittaker: Was he having -- doing -- was that done in the court?

Mr. Herbert A. Warren: The refreshing of the recollection?

Justice Charles E. Whittaker: Yes.

Mr. Herbert A. Warren: No, sir.

Justice Charles E. Whittaker: They were in that notes and never in the court.

Mr. Herbert A. Warren: As far as we know they were never in court.

No, sir.

Justice John M. Harlan: Could I ask you --

Justice Potter Stewart: Why did -- excuse me.

Justice John M. Harlan: Could I ask you a subsidiary question?

Mr. Herbert A. Warren: Sure.

Justice John M. Harlan: Was any request made from the notes that were denied, production was denied.

Any request made, the judge to take a look at them?

Mr. Herbert A. Warren: No, sir.

It was not and it's our position that the defendant did everything that he was required to do either under the statute or under the Jencks case.

Justice John M. Harlan: Because if this comes under the statute, you get them automatically.

Mr. Herbert A. Warren: That's right.

Justice John M. Harlan: I think if you considered under the statute.

If you have to fit it under the Goldman rules, assuming Jencks doesn't extend this far, then you are in the realm of discretion are you not?

Mr. Herbert A. Warren: That's right.

Justice John M. Harlan: And in that event, the absence of any request or production after the judge said he would deny the motion becomes irrelevant circumstances.

Mr. Herbert A. Warren: Yes, sir.

Justice Potter Stewart: Was it conceded or -- that the -- these notes were in the possession of the Government at the time of the trial?

Mr. Herbert A. Warren: Only by the fact that the agent said that he had refreshed his recollection from the notes before coming to testify.

Justice William J. Brennan: And he, I gather was what, a narcotics agents?

Mr. Herbert A. Warren: He was a narcotics agent.

Yes, sir.

Justice Potter Stewart: Because under the statute, under the literal terms of the statute, can they -- in order to qualify, they must be in the possession of the United States.

Mr. Herbert A. Warren: Yes and I think by virtue of the fact that they were in the possession of an agent --

Justice Potter Stewart: His possession.

Mr. Herbert A. Warren: -- of the United States, it would be deemed to be within the possession of the United States.

Justice Potter Stewart: Well, exactly in the possession of the United States at the time the demand is made is -- would be the relevant time, will it?

Mr. Herbert A. Warren: Yes, sir.

Justice Potter Stewart: Now, one other question.

Where -- where are the notes now?

They've been destroyed or --

Mr. Herbert A. Warren: I do not know, sir.

Justice Potter Stewart: Is -- they're not in the record?

Mr. Herbert A. Warren: They're not in the record.

Justice Potter Stewart: In anyway or even as a --

Mr. Herbert A. Warren: None.

Justice Potter Stewart: None.

So there's no way to know unless the Government tell us.

Mr. Herbert A. Warren: There's absolutely no way to know.

That's right.

Justice Charles E. Whittaker: But one time that the notes were taken?

Mr. Herbert A. Warren: I contend that I think it's obvious from the record that the Agent Rudd as he was conducting his investigation was making notes as to the events as they transpired as to what he saw, what he found, what the witnesses told him.

And that is the type of note that we are seeking and of course that is the type of note which would be valuable to the case and -- in this case.

Justice Felix Frankfurter: And for all we know, he has made the notes of people whom he -- whom he talked with before every his suspicion was directed to Needleman, is that right?

Mr. Herbert A. Warren: I don't think --

Justice Felix Frankfurter: For all we know --

Mr. Herbert A. Warren: -- we could say that.

Justice Felix Frankfurter: What?

Mr. Herbert A. Warren: I don't believe we could say that by virtue of the fact that he said that he had refreshed his recollection from the notes before coming to testify.

Justice Felix Frankfurter: Yes, but you might, you refresh your recollection by the fact that it was a, that it was the hardest day for -- what is it yesterday?

April 23rd and he's still in Washington.

Mr. Herbert A. Warren: That's right.

Justice William J. Brennan: But I gather one of our discovery theory that none of us knows what's in those notes.

Mr. Herbert A. Warren: That's right.

Justice William J. Brennan: And when he said he refreshed his recollection from them, they related to his investigation.

The judge didn't look at them and no one has ever seen them.

Mr. Herbert A. Warren: That is correct.

Justice Felix Frankfurter: And was it -- was the counsel for the defendant refuted from -- from what is and asking him for this that you put down, what the defendant said to you?

Did you -- are these notes on your conversations with Needleman?

Did this judge shut off that line of inquiry?

Mr. Herbert A. Warren: No, he did not shut it off.

It's still our position that the only thing that the defendant has to do is request production of a statement of the witness.

Justice Charles E. Whittaker: You -- this --

Mr. Herbert A. Warren: Then --

Justice Charles E. Whittaker: It's just a statement of the witness.

Mr. Herbert A. Warren: I -- within the literal --

Justice Charles E. Whittaker: From the meaning of the statute.

Does that --

Mr. Herbert A. Warren: Yes, sir, I think it is.

A written statement made by the witness, in making notes, the notes are written, signed or otherwise adopted by him.

The fact that the witness referred to the notes to refresh his recollection, I believe is certainly an adoption and approval by him of those particular notes.

Justice Felix Frankfurter: But -- but really, Palermo, said the adoption and approval must be of the recorded statements, whose statements they purport to be.

Mr. Herbert A. Warren: Where you are --

Justice Felix Frankfurter: We talk about literal as though there'd been no decision or opinion in Palermo.

Mr. Herbert A. Warren: No, Palermo, I'd like to emphasize, does not involve this situation at all.

And Palermo, a government witness was on the stand.

What was requested was the statement which that particular Government witness had given to a Government agent.

And this Court decided it was not within the purview of the statute because it was a summary, could not be barely attributed to the witness, and it would be unfair to impeach him with someone else's statement.

Justice Felix Frankfurter: And what you're trying here was to search the truthfulness of the statement of the narcotic agent in relation to Needelman in the light of what Needelman purportedly had said to him.

Mr. Herbert A. Warren: That's right

Justice Felix Frankfurter: And the counsel for the defendant laying out the slightest foundation for suggestion that these notes were recordings of statements made, contemporaneously by Needelman to the agent.

Mr. Herbert A. Warren: The government agent had said that he made the notes during the course of his investigation.

That the --

Justice Felix Frankfurter: But investigation precedes any kind of talk with Needelman.

Mr. Herbert A. Warren: I do not limit -- I say we're entitled to the entire notes of the agent as far they relate to anything that he has testified to, and I do not limit it solely to his testimony as to his conversations with Dr. Needelman.

Justice Felix Frankfurter: I'm not denying that you might have been entitled to the -- to these notes.

I'm suggesting you're wholly outside the basis for making the automatic production of the notes through the Jencks statute.

My questions are entirely directed to that.

Mr. Herbert A. Warren: Yes, sir.

Justice Felix Frankfurter: Not at all a judgment anymore than anybody else can tell what're in these notes.

I'm suggesting that's not the necessary foundation laid for what the Jencks statute requires.

Mr. Herbert A. Warren: As far as the -- along that line going to Jencks case itself, the action of the defense counsel in that case was a request that the trial judge examined the particular statement involved to see if they could be produced for his inspection, and that was all that he did.

Now, I think that just so under the same reasoning of the Jencks case, that's all that's necessary to be shown is that the witness has made a prior statement or prior notes relevant to his present testimony.

Once that is done, then he has established the basis for the production of the notes, under the statute, under the Jencks case itself.

The next move is then up to the Government to protect itself by asking the trial court to examine the notes and to excise any irrelevant portions before they are delivered to the defendant.

Now, proceeding to the next question as to the effect of the Goldman case and the effect to the Jencks case upon the Goldman case, first of all we noted that the Fifth Circuit in deciding this case, decided first of all that the notes were not within the scope of the statute, because as the Fifth Circuit said, the statute relates to formal statements, and statements which would be admissible in evidence.

Now, this Court and Palermo discarded both grounds, and said that the particular statements, that formality was not an issue in determining the producbility of the notes and the fact that they would not be admissible in evidence was also not a fact that could be considered.

So the basis of the Fifth Circuit in ruling that the notes were not within the statute did not conform with the ruling of this Court in Palermo.

The Fifth Circuit then proceeded to say that the rule of Goldman was not overruled by Jencks and that the trial court had the discretion to deny the request for the notes even though the witness had refreshed his recollection from the notes before coming to testify.

Now, in Goldman, I think it's important to note the basis for the request of the contemporary notes of the agents.

I think that in that case as I read it, the basis of the request was founded solely upon the assumption that because the agent had refreshed his recollection with the notes, that they should be produced.

In the Jencks case, the basis for the production of the statements of the witness was the fact that the witness at a time when his memory was precious had made a statement, a record of the events which transpired, that the value of such a contemporaneous statement to the defense in impeaching the witness could not be overestimating.

The fact that the witness had already testified relieved any qualms the Court may feel as far as secrecy of government reports and investigative reports are concerned.

So, that even though the witness may not have referred to his report before coming to trial or had not referred to his report while he was in the courtroom.

That fact would not prevent the production of the prior statement of the witness.

So to that extent, I say that Jencks did overrule Goldman.

To make myself perhaps a little clearer, we say that if a witness has made a prior statement as to an event about which he is now testifying, if the defense has that prior statement available to him, he has a weapon at his command for impeaching the present testimony of that witness.

I think the basis for the ruling in the Jencks case is that it's only fair that those prior statements be afforded to him.

Goldman, perhaps still has some vitality if the witness is refreshing his recollection from statements which are not his own.

He is referring to some photograph, or some report of someone else.

Then perhaps the trial court does have discretion as to whether or not the materials used for refreshing recollection should be produced.

Justice John M. Harlan: In other words, what you're saying if I get your argument is that to the extent that there, the statute doesn't apply to, the extent in saying Jencks was broader -- the Jencks ruling was broader than what the statute undertook to do, is that it?

Mr. Herbert A. Warren: I -- I -- my position first of all is that in this particular case, the contemporaneous notes of the agent are covered by the specific --

Justice John M. Harlan: Yes, I understand that.

Mr. Herbert A. Warren: -- language of the statute.

I say secondly that if you interpret the statute as relating solely to reports of witnesses given to government agents that the principles of Jencks would require the production of the contemporaneous notes of a Government agent.

And for the very the same reason, that the reports were required to be produced in Jencks.

That is the fact that the agent has made at a time when his memory was fresh a recordation of the event by which he is now testifying.

And since he has testified, there's no basis for any evidentiary privilege to be claimed by the Government.

Justice John M. Harlan: Or turning around the other away, that the statute, Congress undertook to deal with Jencks only partially.

Mr. Herbert A. Warren: Yes.

If -- I still say -- I'd still have to say --

Justice John M. Harlan: Yes, I understand that.

Mr. Herbert A. Warren: Yes.

Justice John M. Harlan: But I mean, if you're -- if you're not right on that, then your position is, that Congress did not, in the Jencks statute, deal with all of Jencks.

Mr. Herbert A. Warren: That's right, sir.

Justice John M. Harlan: Yes.

Mr. Herbert A. Warren: One point about the question of harmless error.

This -- this Court in the Rosenberg case decided last term, decided that even though the trial court was in error in not requiring a production under the statute of a particular document that it would be characterized as harmless error by virtue of the fact that the same information contained in the documents sought to be produced was already possessed by defense counsel.

That can not be said in this present case because we do not have the notes before us, we do not know what was in the notes, we do not know if the notes conform with the case reports, and we do not know if they conform with the testimony of the Agent Rudd.

Now, the case of Holmes versus United States in the Fourth Circuit which is cited in our brief, I'm pleased to say it takes the same position as the petitioner in this case.

First of all, that the notes, reports and memoranda of a government agent are within the literal meaning, literal wording of the statute, 18 U.S.C.Section 3500.

It goes further and says that since the notes were not preserved in the record that the court had not examined the notes, could not say as this Court did in Rosenberg that the defense was already possessed in the same information which they would've received at the document they produced.

Therefore, they could not characterize the error as harmless and reverse the case.

A similar case of Bradford versus United States, the Ninth Circuit involved the contemporaneous notes of an agent.

The court looked at the notes, but did not preserve the notes in the record, handed them back to the agent.

The Court of Appeals for the Ninth Circuit in applying the Jencks case said that is was error not to require the production of those notes because they were shown to be relevant to the testimony given by the agent.

And they could not say that it was harmless error because again, the notes had not been preserved in the record, they could not look at them and say that defense counsel was already possessed of the information wich he would have received.

So our position just in a nutshell is, an agent has made a prior statement, a prior record of an event which has transpired and has now become very important as to the guilt or innocence of the party being prosecuted.

The agent has testified.

There's no further reason for the Government to assert that such prior statement of that agent should not be produced.

If it is produced, it is relevant to his testimony.

The value to the defense cannot be overestimating, particularly if that prior statement does not now conform to his present testimony.

A simple justice, I think would require that the document be made available to the defense.

If it's the same as the agent's testimony, no harm is done to the Government.

If it's different then we do have the further step in ascertaining the truth of what actually occurred at the time that the agent made that record.

Justice Potter Stewart: In the Fourth Circuit case and the Ninth Circuit case, Holmes and Bradley, are the names right?

Mr. Herbert A. Warren: Right.

Justice Potter Stewart: Where the -- where the so called statement of the same nature as those involved here, memoranda or memorandum written presumably for the --

Mr. Herbert A. Warren: Yes.

Justice Potter Stewart: -- writers on that -- they alone?

Mr. Herbert A. Warren: Yes, the Holmes case refers to them as the reports and memoranda of the agent.

The Bradford case refers to them as the notes of the agent.

Justice Potter Stewart: As to where the report would -- might imply that this was something to be communicated, be reported to somebody else, might it not?

Mr. Herbert A. Warren: It might.

Yes, sir.

But in our view, the fact of communication is of no importance whatsoever unless the witness is someone other than the government agent who has communicated a statement to the government agent, and it is now in the possession of the Government.

The main point is that this government agent, at a time when his memory was fresh, made a record of the events as they transpired.

That is the important thing.

If he just stuck it in his pocket, never looked at it again until the time of trial, it's just as important to the defense to have that statement to show that his present testimony does not conform to the report that he made when his memory was fresh.

Justice Potter Stewart: Did the two -- those two Courts of Appeals that rely on the -- on the literal provisions of a 35 -- Section 3500 (b)?

Mr. Herbert A. Warren: The Holmes case relied upon the literal provisions.

The Holmes case also pointed out that this Court in the Palermo case did -- was not confronted with a situation involving the notes of the agent, where the agent is himself the witness.

Under the Bradford case, they did mention the Palermo case and the statute.

However, they decided it upon the basis of the Jencks case rather than the statute, and noted that when it went back for trial that the procedures prescribed by the statute would be followed.

Justice John M. Harlan: How long was the jury out in this case as to --

Mr. Herbert A. Warren: I don't know, sir.

Justice John M. Harlan: The record doesn't show?

Mr. Herbert A. Warren: The record does not show it, no, sir.

I will -- I'd like to emphasize again to the court that even in the trial judge's opinion, it was a very slender case.

Justice John M. Harlan: I noticed that.

Mr. Herbert A. Warren: If there are no further questions from the Court, I would reserve the rest of my time for rebuttal.

Chief Justice Earl Warren: You may, just go ahead.

Mr. Davis.

Argument of Oscar H. Davis

Mr. Oscar H. Davis: Mr. Chief Justice and may it please the Court.

As counsel has said, the only question which is before the Court is whether petitioner was entitled to receive the notes of the narcotic Agent Rudd, who testified as one of the government's witness.

I would like to summarize what the Government's position is because I think that though counsel has implicitly accepted it on argument today, his briefs had gone more far field.

Our position is that a defendant is not entitled to receive the un-communicated personal notes of a government agent testifying as a government witness.

We do not take the position, which we think was true in both the Bradford at least just a part of the materials, and certainly wholly in the Holmes case that a report made by an agent to his superiors or to other agents of the Government such as the case report which was produced in this case, is not producible because it is the product of a -- of a Government agent's position.

Justice William J. Brennan: So may I ask then, Mr. Davis?

Is that to say that if these notes, whatever they were, had been delivered by this particular narcotics agent to his superior for safety, examination or what have you.

You would not say that the statute did not cover him?

Mr. Oscar H. Davis: That's right, because we would say then that by handing them over, I think not for safe keeping, but for examination, he was in -- he was making a report to another government agent.

He was -- he was telling the government agent, “Here is something that I've discovered, I want you to note that.”

Justice William J. Brennan: Notes, just put in the --

Mr. Oscar H. Davis: -- in the -- in the department's --

Justice William J. Brennan: -- files.

Where they're available to examination by his superior (Voice Overlap).

Mr. Oscar H. Davis: That would be a different case.

Justice William J. Brennan: Well, would that be one of communication?

Mr. Oscar H. Davis: I'm not sure about that.

I -- I'm -- I'm not certain whether -- if they will put them in -- in department's files, it might be because then they would be used by people including the United States Attorney in preparing for the case and other Government officials.

But here we think, we have a case which does not -- go to that point.

Justice William J. Brennan: Well, I know you've developed but I don't quite understand why you put a distinction based on --

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

Justice William J. Brennan: Then you take it particularly if it's not more than -- put it and then --

Mr. Oscar H. Davis: No, because --

Justice William J. Brennan: -- and you require (Voice Overlap) --

Mr. Oscar H. Davis: -- when -- when -- I -- I was trying to develop that either today or tomorrow, because we think there's a great distinction as I will to try to point out that when a man writes something for himself, which he might just right down, one little jotting which reveals to him a whole mass of material because he's only talking to himself, as Justice Frankfurter indicated.

There's a great deal of difference when he's writing for somebody else.

When he leaves the private world that is in -- own internal memory and so on, and he has to communicate to other people.

But when --

Justice William J. Brennan: I just thought that -- I'd just telling here is none of his notes, what's in these notes.

Mr. Oscar H. Davis: Well, and our -- and our point on that is, that it was open to the defense counsel to ask many more question of -- of the agent, that he -- than he did ask.

And to ask for in camera inspection which he did not ask.

Now, I will say this to the Court that we would not make an argument based on the fact that these notes were un-communicated personal notes if we knew that they had been communicated to the Government.

We had made an inquiry.

We had been assured by the agent that these notes were retained in his personal possession, given to no other person in the Narcotics Bureau, or to the United States Attorney or his assistant.

Justice William J. Brennan: Have you found out whether they still exist or not?

Mr. Oscar H. Davis: I haven't, Your Honor.

Chief Justice Earl Warren: If he had made -- if he had made a request for an in camera inspection of them, would he have been entitled to it?

Mr. Oscar H. Davis: If the Court would have been entitled to -- to --

Chief Justice Earl Warren: No, I say if -- if counsel had made the request for -- for the Court to make an in camera inspection of it, would -- would he been -- had been entitled to have that?

Mr. Oscar H. Davis: I think -- I think that he would have first had to ask questions about, whether these notes were communicated to other people.

What kind of notes they were.

How were they made?

What do they deal with?

Were they made on the run?

Were they elaborate notes, or were they just mere fragmentary jottings and so forth.

Were they communicated to anybody else?

And whose custody had then been kept?

These are all questions which counsel could have asked with -- without knowing anything more about these notes than the members of the Court, know now.

And then if a proper foundation had been laid, as a result of these questions and he had then asked the Court to -- to inspect the notes in camera, depending upon the result of the -- of the agent's answers, the Court would have or would not have granted inspection.

I mean it would not have -- would or would not have taken them into his own bosom to see whether they should be made available to the defense counsel.

Chief Justice Earl Warren: Did he ask -- he did ask the witness what -- what appeared to be a very material thing about -- about these fraudulent prescriptions and how many were filled and so forth.

And --

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

Chief Justice Earl Warren: -- witness answered that, “Well I can't tell you unless I refresh my memory from my notes.”

Mr. Oscar H. Davis: No, they were other notes, Mr. Justice.

Chief Justice Earl Warren: I beg your pardon, with those notes --

Mr. Oscar H. Davis: Not --

Chief Justice Earl Warren: -- that he took?

Mr. Oscar H. Davis: Well, they were -- he wasn't -- he didn't say from his notes, I think they were the proscriptions themselves that he wanted to.

The only thing that appears about the notes, Mr. Chief Justice, is on the page 88, the lines which were read by -- by defense, by petitioner's counsel.

That's -- that and the motion which was made and denied on the page 93 are the only foundation or the only effort made by the defense counsel in this case to find out what the notes were about, what they dealt with, what kind they were, whether they were a narrative statement, whether they were just jottings, whether they were keywords like yesterday that -- that had one word might reveal to some people.

People differ in their personalities and in their -- their note-taking habits.

One word reveals a whole lot to somebody and -- and other people are very much more careful, or -- or shall I say more (Inaudible).

Chief Justice Earl Warren: Let's say he put it direct to me.

He said that the question by Mr. Roberts, “Let me ask you Mr. Rudd, excluding the (Inaaudible) proscriptions, do you recall that you found that there were 118 proscriptions issue?

Mr. Oscar H. Davis: Where -- where is that Mr. Chief --

Chief Justice Earl Warren: That's on page 83, at the top of page 83 --

Mr. Oscar H. Davis: Yes.

Chief Justice Earl Warren: -- about four lines from the top.

“Do you recall that you found that were 118 proscriptions issued out of Dr. Needelman's office, where in that period of time, and only 57 were filled by Medical Arts Pharmacy?”

Answer, “Before I can answer that question, I would have to examine the list of the figures in my report.

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

Chief Justice Earl Warren: “Now, you are saying something about 67 and 157 or 80, or something.

The number could be off, but I have you given you an estimate of the whole business excluding the (Inaudible) 30 or 40.

If you want me to examine my files, I will examine them and give you the figures.”

Mr. Oscar H. Davis: That reference was to the case report which is a 22-page, single-space report which was made available to the defense attorney.

It's 22 pages long, it's a very elaborate document, it is on file in the -- in the clerk's office.

We have reprinted in the -- in the record just the portion, beginning at page 138 just the portion of that case before it that summarizes the anticipated testimony of agent Rudd himself.

The preceding portions of the -- of the report go at great length into the various exhibits that -- that were appended to the report, the type of the documents that the agent had taken or it examined.

And then he -- he then goes on and summarizes at great length, the -- the testimony of the various witnesses not only himself, all the other witnesses, whom he expected that the United States could call at the trial.

And he includes his own anticipated testimony.

It goes beginning at -- at the top part of page 138, it goes all the way to page 146 which is a summary or a statement of what Agent Rudd would himself testify to

Justice Hugo L. Black: Who wrote this phrase?

Mr. Oscar H. Davis: The agent himself.

This is the agent's report which was made available to the defense counsel, and as counsel has said, it wasn't in our view, excuse me, by cross-examination by the defense.

Justice Potter Stewart: Mr. Davis, this motion that was denied as you pointed out, in page 93 of the record, can you tell us, that's all there is (Voice Overlap) --

Mr. Oscar H. Davis: That's all there is.

Justice Potter Stewart: Is the motion, the one appear on the page 8 of the record?

Mr. Oscar H. Davis: No, sir.

That's a motion before trial.

Page 8 is the -- is a motion which was made before trial in this case, on the -- on this.

You see, first, there was a trial on the conspiracy --

Justice Potter Stewart: Yes.

Mr. Oscar H. Davis: -- in that which would -- led to a mistrial.

Justice Potter Stewart: Yes.

Mr. Oscar H. Davis: Then there was a later substantive indictment which was consolidated with the conspiracy indictment for retrial.

This motion was made prior to that retrial on the conspiracy indictment --

Justice Potter Stewart: That is the one on page 8.

Mr. Oscar H. Davis: Page 8.

Justice Potter Stewart: Prior to the action.

Mr. Oscar H. Davis: And it was denied.

Justice Potter Stewart: And?

Mr. Oscar H. Davis: And there is no question, before the Court as to that the propriety of the denial of that motion --

Justice Potter Stewart: Of that --

Mr. Oscar H. Davis: -- which was before a trial.

Justice Potter Stewart: Alright.

Now, do we know of what the motion was that was denied on page 93?

Mr. Oscar H. Davis: We know nothing more.

We know nothing more than -- than appears in the record.

And before the close of the day, I would like to say that in the view of the Government, it is incumbent on the defense and on the appellant and on the petitioner in this -- in this Court to -- to present these issues in a way in which they can be decided either by the trial court or the appellate court.

That has been the rule which has been followed I think since the beginning of appellate proceedings that the party who is the moving party, the party who wants to attain -- obtain some evidence or the party who was the appealing party.

You seek some --

Justice William J. Brennan: Well may I ask, Mr. Davis, at page 93.

I would understand there's an omission?

Mr. Oscar H. Davis: No.

Justice William J. Brennan: That there's some --

Mr. Oscar H. Davis: That's all there is in the -- in the record.

That's all there is.

Justice William J. Brennan: I know that that's all there is.

But because a short recess of that, then this followed denial of motion protects the notes.

And my --

Mr. Oscar H. Davis: That --

Justice William J. Brennan: -- question is, was there during that recess a motion for production of notes, colloquy thereon, which was not reproduced

Mr. Oscar H. Davis: Mr Justice, the -- this print, is based upon a mimeograph in the Court of Appeals which is based upon the reporter's testimony of this trial.

And that's all we have.

The word denial for the -- of motion for production notes, was I think inserted by the clerk of this Court at the printing.

Justice William J. Brennan: Oh, is that in this Court?

Mr. Oscar H. Davis: I think it was inserted by the clerk (Voice Overlap) --

Justice Felix Frankfurter: Where is this in the print?

Justice Potter Stewart: It's 93.

Justice Hugo L. Black: 93.

Justice Felix Frankfurter: The --

Justice Hugo L. Black: It's not in that, in record there.

Mr. Oscar H. Davis: I think -- I think not, sir.

Justice Felix Frankfurter: Isn't there anything?

Mr. Oscar H. Davis: There's nothing except what you see here.

Therefore --

Unknown Speaker: Alright.

Mr. Oscar H. Davis: -- and a short recess was taking place.

Justice Felix Frankfurter: No, no, no.

What -- what I want to know is what -- what is then the stenographic administrative trial which indicates the motion was denied?

Mr. Oscar H. Davis: This is all there is.

This is the (Voice Overlap) --

Justice Felix Frankfurter: But you've just said, this was inserted by our clerk.

Mr. Oscar H. Davis: Just to -- just the -- the line, denial of motion for production.

Justice Felix Frankfurter: Now, I ask again.

Was there a denial of a motion in the --

Mr. Oscar H. Davis: The next sentence --

Justice Felix Frankfurter: -- stenographic minutes?

Mr. Oscar H. Davis: The next sentence of the Court, “I will deny the request for the notes.”

Justice William J. Brennan: Well, where is the request for the notes to which they defined they -- they filed request.

Mr. Oscar H. Davis: There -- there is nothing, Mr. Justice.

Justice William J. Brennan: Well, there must have been a request denied.

Mr. Oscar H. Davis: We'll admit, it was apparently made off the record, not taken down by the recorder, either in chambers or without the jury being --

Justice William J. Brennan: Well, may I ask because you have already answered Justice Stewart that the motion at page 8 was denied.

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

Justice William J. Brennan: I don't find it in the record any action of the Court denying that motion.

Mr. Oscar H. Davis: Yes.

The next page.

Justice William J. Brennan: Where?

Mr. Oscar H. Davis: Page 9.

At the bottom that the motion for production --

Justice William J. Brennan: Oh yes.

Mr. Oscar H. Davis: -- inspection.

Justice William J. Brennan: Yes, thank you.

Justice Felix Frankfurter: I'm -- I'm sorry, that was just the caption there for the headline.

Mr. Oscar H. Davis: That's right, I -- I yes, Mr. Justice, the headline was just considered.

Justice Tom C. Clark: That's in not in the (Inaudible)

Mr. Oscar H. Davis: I believe not.

Justice Felix Frankfurter: Does -- does our clerk in putting this, the running, the printed lines?

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

Justice Felix Frankfurter: Direct examination --

Mr. Oscar H. Davis: I think some (Voice Overlap) --

Justice Felix Frankfurter: I suppose those (Voice Overlap) --

Mr. Oscar H. Davis: For the -- for these subdivisions.

Justice Felix Frankfurter: (Voice Overlap) would you mind looking that up -- would you mind looking that up

Mr. Oscar H. Davis: Yes.

Justice Felix Frankfurter: In your smallest view of what there is, the stenographic --

Mr. Oscar H. Davis: We don't have the stenograph --

Justice Felix Frankfurter: Well, what there is with this --

Mr. Oscar H. Davis: We have --

Justice Felix Frankfurter: (Voice Overlap) this is current here --

Mr. Oscar H. Davis: -- Yes.

Justice Felix Frankfurter: -- to review what was before the Court of Appeals.

Mr. Oscar H. Davis: Well the reason I say --

Justice Felix Frankfurter: When the Court of Appeals was reviewing what was before the District Court.

Mr. Oscar H. Davis: The reason I say that I think the clerk put in that catch line is that on Saturday, I came up and looked at the original record and that is included in pencil in the -- in the -- that phrase “denial of motion is included” in pencil and in the other-- in the Court's copies --

Justice William J. Brennan: Well, Mr. Davis, that -- that -- It would appear that during this recess, there was some kind of motion made and there must have been some argument attached to it.

Mr. Oscar H. Davis: I presume so, but I presume --

Justice William J. Brennan: And we get ruling but we don't get the -- the motion, we don't know what the forms of request was?

Mr. Oscar H. Davis: That is right.

Justice William J. Brennan: All of the omissions, do you suggest, the deficiency is just here and you conspire to prevent that.

Mr. Oscar H. Davis: I think it's impossible to have that because I think that what you have is the full stenographic print.

Justice William J. Brennan: And it was not recorded.

Mr. Oscar H. Davis: I think it was not recorded by the stenographer.

I think there was not just an --

Justice Felix Frankfurter: And it's more than --

Mr. Oscar H. Davis: -- an omission.

Justice Felix Frankfurter: It's more than that.

Of course the stenographer couldn't record anything that didn't take place.

There was no request by the defendant counsel that has -- appear on the record.

For these -- in these reasons, we've made this and this motion.

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

Justice Felix Frankfurter: And that was denied, we accept.

Mr. Oscar H. Davis: There is --

Justice Felix Frankfurter: There's nothing to prevent that being done.

Mr. Oscar H. Davis: There is nothing and -- and the rule of this Court has always been and the rule of all other courts, as far as I know.

That it is incumbent on the party who -- who wishes to obtain evidence to lay the foundation, make sure that the -- the record reveals his position and the -- and -- and to see that it gets into the record for appellate proceedings.

Justice Felix Frankfurter: And if --

Mr. Oscar H. Davis: And that was not done.

Justice Felix Frankfurter: And for the very good reason that it -- that if other things had been done, the Court Appeals might have reached another result.

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

And in fact -- in -- in a case called Palmer against Hoffman in this Court in 318 U.S. which was an earlier case involving production of reports not in that case to the Government but to the other side's counsel.

The Court held in the second part of its opinion 318 U.S. at page 116 that the petitioner who had not got into the record the document that he claimed should have been a -- he should been allowed inspection of had to bear the burden of the fact that -- that the Court couldn't pass upon it, and that the Court couldn't pass upon it, because he had not got it put into the record.

This petitioner did not get -- put into the record the note, or make an effort to do -- do so.

In the Ninth Circuit case, the Bradford case to which counsel referred, the judge refused to put it in the record.

He gave it back to the government agent.

He said he wouldn't put into the record and of course if that happened, the petitioner has protected himself.

He has done what he could.

But this petitioner did not make any effort to -- to have the judge put -- see this document or put it into the record and preserve it for the use of this Court or the Court of Appeals.

Now --

Chief Justice Earl Warren: I've already --

Justice Hugo L. Black: Does the bureau -- does the Bureau of Public -- pubic regulation with regards to the reports that have to be made by its agents.

Mr. Oscar H. Davis: I don't believe so, the Bureau of Narcotics.

Justice Hugo L. Black: Yes.

Mr. Oscar H. Davis: I don't believe so, but we are -- we have in part --

Justice Hugo L. Black: Just -- or public regulations or references --

Mr. Oscar H. Davis: How --

Justice Hugo L. Black: -- the corrector shall be kept of investigations of cases --

Mr. Oscar H. Davis: I -- I believe not.

There maybe internal working arrangements.

But I do understand this, because we made inquiry that personal notes of this kind can be retained by the agent, and need not be sent on to his superior's or his agents.

And as I said before, we have been told by this agent that he did retain these notes.

So we're not arguing a false issue and we talked saying that these notes were privately retained and not omitted.

Print this transcript Transcript: 

Argument of Oscar H. Davis

Mr. Oscar H. Davis: I came from the bench of the argument yesterday.

Justice Harlan asked if the record revealed how long the jury was out.

On page 405 of the original record on file with the clerk, it indicates the jury returned at 4:26 in the afternoon and returned with a verdict at 6:06.

So they were out about an hour and 40 minutes.

Some reference has been made to the fact that the trial judge before he submitted the substantive counts to the jury refer to the fact that it was a very slender case.

He did say that.

He said, “Off-hand, I think this is a very slender case.”

After the verdict was returned, the motion for a new trial was made as to all 15 counts.

He granted it as to five, but did not grant it as to the 10, which still remain in the case.

The issue of the sufficiency of the evidence was brought up to the Court of Appeals and was thoroughly reviewed there as the opinion reveals.

It has not been brought to the Court.

I would also say on the point that the full record contains somewhat more evidence than the printed record here that is, there is testimony of both witnesses for the prosecution and witnesses for the defense whose testimony is not included in the printed transcript, but it is included in the original transcript on file with the clerk.

Mr. Justice Frankfurter asked about the catch line with respect to the denial of the motion for production of notes on page 93 of the record.

I have ascertained from the clerk that that catch line which is in the capitals on page 93 was inserted by the clerk of this Court in preparing the record for printing for the convenience of the Court.

And it is done so that an index can be made up from the beginning for the convenience of the Court.

The original record, as I said yesterday, contains just what we have here and has no indication of any deletions or elisions.

Justice Potter Stewart: The motion itself does not appear in the record.

Mr. Oscar H. Davis: The motion itself does not appear at all.

And I also referred yesterday to the case report which was delivered to defense counsel at -- at his request.

Justice Earl Warren: Mr. Davis --

Mr. Oscar H. Davis: And --

Justice Earl Warren: -- and also, it does not appear in the full record.

Mr. Oscar H. Davis: It does not appear anywhere.

Justice Earl Warren: Yes.

I think it was not taken down by the --

Justice Earl Warren: Yes.

Mr. Oscar H. Davis: -- by the stenographer at the trial.

With respect to the case report, a copy of which is in the original record here in file.

I have the agent's own copy.

This is a carbon copy of the one on file with the -- with the Court.

And I would -- for the convenience of the Court, I would like to refer to and then tell the Court a little bit what it's about.

It's 23 closely typed pages, single space.

And it's called “Narcotic Case Report” and it goes on with a narrative statement of the -- by the -- by the agent of -- of the facts in the case including a very elaborate description of all the physical exhibits, the various prescriptions and records which he -- which he inspected and which he took.

And then this elaborate description goes of -- of the physical records goes on to page 8.

And beginning at page 8, and ending at page 23, there is a narrative description of the expected testimony of various government witnesses, not only the agent himself but of all the various government witnesses whom he thinks might appear at the trial.

Beginning with the Director of -- of the Internal Revenue in that area to show that Dr. Needelman did have a narcotic stuff and so forth.

Justice Potter Stewart: Is that an excerpt only from that that appears at the --

Mr. Oscar H. Davis: Yes.

Justice Potter Stewart: -- printed record beginning on page 138?

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

The excerpt is that -- that portion of the case report which deals with the expected testimony of Agent Rudd himself.

And what I -- I now want to point out to the Court that the expected testimony of a lot of other people is also included in the original report which was handed to the defense counsel.

The excerpt here which is printed in the record and goes, I think, for some eight pages in the record is the -- is the expected testimony of Agent Rudd himself.

In the typed case report, it goes from page 17 to page 23, so it is a -- an extensive --

Justice John M. Harlan: (Inaudible)

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

Certainly, the portion of the case report which refers to the testimony of other witnesses would not be compellable with respect to the testimony of Agent Rudd.

In fact, it contains report of testimony of people who were not called as witnesses by the Government in the trial.

This is what the agent thought the Government's case could rest upon at its maximum.

Some of these witnesses were not called at the trial.

Justice William J. Brennan: Well, tell me, Mr. Davis, am I correct in understanding that what became crucial at the trial was Agent Rudd's testimony that Dr. Needelman had in effect told him that he knew these prescriptions were being given to narcotics addicts?

Mr. Oscar H. Davis: That was an important factor in the trial.

Justice William J. Brennan: Well, I thought --

Mr. Oscar H. Davis: I do not think it was crucial.

Justice William J. Brennan: I see.

Well, Dr. Needelman denied, didn't he?

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

Dr. Needelman did deny that he had said that.

But there was, of course, a lot of other testimony to the effect that these people were addicts and were not treated in a regular course of -- of practice.

The facts have not been fully stated before the Court and I don't want to go into them because the sufficiency of the evidence is here.

Justice William J. Brennan: Yes, so that on -- on the question -- as I'm looking at page 139, there's a statement in the report from the original report that at that point, Dr. Needelman voluntarily and spontaneously stated --

Mr. Oscar H. Davis: Yes.

Justice William J. Brennan: -- that he had left those prescriptions with those addicts when he left for Europe.

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

Justice William J. Brennan: Now, this Dr. Needelman denied, didn't he?

Mr. Oscar H. Davis: That is right.

Justice William J. Brennan: And that became really a crucial factor.

Mr. Oscar H. Davis: That was an important factor.

Justice William J. Brennan: Crucial (Voice Overlap) --

Mr. Oscar H. Davis: I -- I don't know if it was crucial --

Justice William J. Brennan: -- crucial at least in court.

Mr. Oscar H. Davis: -- but it was important.

Certainly, that's true.

Justice William J. Brennan: Now, is there anything in the original report to indicate that this is a summary of the agent's notes?

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

Justice William J. Brennan: We can't tell that at all.

Mr. Oscar H. Davis: You can't tell that from the (Voice Overlap) --

Justice William J. Brennan: And we don't know then whether there was recorded by the agent at the time of this conversation with Dr. Needelman, the substance of the conversation, we don't know that?

Mr. Oscar H. Davis: No, the Court doesn't know -- doesn't know that.

But I would say this that what the defense did have was not only this very elaborate case report, but it also had the prior testimony of Agent Rudd at the prior trial.

Justice William J. Brennan: Yes.

Mr. Oscar H. Davis: It was a mistrial.

And of course, it also had the testimony of the other Agent Waters.

Now, everyone agreed that at -- at this interview with Dr. Needelman, the only persons who were present were Agent Rudd himself, Agent Walters, both of whom testified for the Government, a Florida state agent, Bellinger, who was not called but was available and Dr. Needelman himself.

Justice William J. Brennan: Is there anything in the original report which indicates the lapse of time from the date of the interview with Dr. Needelman where he made the submission according to Agent Rudd --

Mr. Oscar H. Davis: Yes.

Justice William J. Brennan: -- and the preparation of the report?

Mr. Oscar H. Davis: Well, the report is dated October 31st because that is the day it was transmitted.

I cannot say when it was prepared and there was, of course, no questioning of the -- by the defense of the -- of the agent at the time to bring this out.

I would doubt that a report of this length was all prepared only one day.

We also do know that the interview with Dr. Needelman occurred on September 22nd, so there was a lapse of time.

We also do not know because there was not sufficient questioning as to when the agent made his notes because the only information that we have is that short colloquy on page 88 of the record, that in the course of this investigation, he made several notes.

Justice William J. Brennan: Do we know how long this crucial interview, I used the word “crucial” --

Mr. Oscar H. Davis: Yes.

Took place?

Justice William J. Brennan: Took place?

How long it lasted?

Mr. Oscar H. Davis: Well, I think the case report indicates that they saw Dr. Needelman early in the afternoon and then they went back to the pharmacy.

So I can't say the -- it indicates exactly how long, but it was apparently a period afternoon on the day and then before 4 o'clock or something or then.

There has -- was time for traveling going to the pharmacy, which wasn't too far away.

Justice William J. Brennan: Well, I would suppose that the notes of that interview had nothing like this statement of the agent in them that might have been very important to the defense.

Mr. Oscar H. Davis: Perhaps, it would, but if I can get that basic part of my -- of my -- my argument, Mr. Justice, on -- on the Jencks Act, which I would really like to get to now, if I may.

I --

Justice Felix Frankfurter: Before you -- I -- finish your answer.

Mr. Oscar H. Davis: I -- I was about to go on with my argument.

Justice Felix Frankfurter: Yes.

Did this question of the production of the notes take place?

Did that occur at the first trial?

Mr. Oscar H. Davis: Was -- the first trial was on a conspiracy indictment only, Mr. Justice, and I do not know.

I do not -- it was not on the substantive --

Justice Felix Frankfurter: I understand but couldn't it be relevant to that, too?

Mr. Oscar H. Davis: Yes, it -- it might be.

But you see, it was a conspiracy between Dr. Needelman and the drugs.

Justice Felix Frankfurter: I understand.

Mr. Oscar H. Davis: I do not know what occurred at the first trial.

Justice Felix Frankfurter: Your answer is you don't.

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

Justice William J. Brennan: Oh, well, in that same connection, may I ask, Mr. Davis, was the conspiracy trial before the same judge, Judge Choate?

Mr. Oscar H. Davis: No.

I think it was before a different judge.

This conspiracy indictment charged in this trial was of course.

You see, the conspiracy trial was tried -- the conspiracy charge was tried again together with the substantive counts.

Justice William J. Brennan: Well, I'm -- I'm referring to the trial that Mr. Justice Frankfurter gave.

Mr. Oscar H. Davis: No, that was before another judge.

Justice William J. Brennan: Because it -- it might -- might be significant as to this -- what seems to me a rather a little discussion on this motion comes, the --

Mr. Oscar H. Davis: Well --

Justice William J. Brennan: -- the party -- the counsel or the prosecutor and defense counsel and judge might from the prior trial have known what each was talking about and that had been a lot more cryptic in another way in this question.

Mr. Oscar H. Davis: That might be true.

And of course, if I may so, Mr. Justice Brennan, that's the core of my argument about the notes that the man himself knows what the notes are about and other people don't.

And that's why they are not properly usable in the impeachment process, which I will try to develop.

My understanding is, I maybe wrong, counsel may be able to correct me, that -- but that the prior trial was before a different judge.

Now, on the -- on the problem of the Jencks Act, our position is that it is quite clear that under the Jencks Act, that private uncommunicated notes made by a private witness, that is a Government witness who is not employed by the -- by the Government.

The office assistants of Dr. Needelman in this case, who were Government witnesses but not employed by the Government, that if they made private notes of their conversations with Dr. Needelman, which they did not hand over to the Government, that would not be producible under the Jencks Act, that's clearly so.

This would be personal uncommunicated private notes of those private government witnesses.

Our position is that when the witness involved is a Government agent and he has notes which he has made in the course of his investigation or -- or -- what the facts he has encountered, and he does the same thing that that private witness does, he does not communicate the notes to the Government but keeps them in himself, that he is in the same position and that his notes are not compellable under the Jencks Act as a matter of right.

We think this follows both from the terms of the statute and from the purpose of -- of the Jencks Act and from the basic character of notes, which I would want to go into.

The terms of the statute has been discussed with the Court.

And I would just like to say that the only -- the -- it's quite clear that subsection (a) and subsection (e) (2) refer to statements made to a government agent.

The whole basis of the -- of my opponent's position really is subsection (e) (1), which is on page 3 of our -- our brief and which says that a statement includes a written statement made by said witness and signed or otherwise adopted or approved by him.

Now, I would suggest that if merely because the agent's notes were in his own handwriting, if that were enough to make them producible, Congress would not have said a written statement made by the witness and sign or otherwise adopted or approved by him.

It would have stop with the statement of written statement made by the witness because everything in the witness' own handwriting would be included in the phrase, a written statement made by said witness, but Congress didn't stop there and went on to say, “And sign or otherwise adopted or approved by him.”

And we think that this means really that it's -- that the witness has to acknowledge responsibility to someone else for these notes.

He has to communicate them to someone else.

It's not enough that he was writing a momento or a -- a mnemonic device to himself and that -- and this fits in really with the entire structure of the Jencks Act because what -- as the Court well knows, what the Congress was dealing with and what this Court was dealing within the Jencks case were reports or statements made by a witness to the Government, which the Government could use in the preparation of the case, which they could use in -- in the -- in knowing what the witness would testify to and so forth.

And the Court felt and the Congress agreed that it was -- it was consistent with the fair trial that that kind of statement should be made available to the defense counsel.

But neither the Court in the Jencks case nor Congress in the Jencks Act were dealing with private uncommunicated notes which had been not been used by the Government in the preparation of the case or even were known to the Government.

And -- and there is a good reason -- before I go on to the reason, I -- I would say that we have support in the legislative history, we believe, for this possession, because not only was there a very explicit discussion at various points in the legislative history that what Congress was dealing with was reports made to an agent of the Government but in the house manager statement at the conference report, which is the Court recognized in the Palermo case last year, it's very significant with respect to the legislative history of this Act.

The house manager said that among the changes agreed upon with the Senate Conferees was to limit the types of statements and reports, which come under the provisions of the bill, the statements of Government witnesses or perspective witnesses other than a defendant made to an agent of the Government, and they italicized, they italicized in their report the phrase “made to an agent of the Government.”

So we think that -- that they indicated very clearly that they were talking about communicated information and not something which was kept within the agent's or the witnesses' own bosom.

And Congressman Cellar, who is particularly interested in this and Senator Ommaney were explicit on this point that its reports made to an agent of the Government.

One of the reasons they were interested in this, if I may say by the way, is that they wanted to make sure that the old rules, I think this is one of the reasons, the old rules such as the rule of refreshing recollection of the Goldman case, there were a witness understand uses materials to refresh his recollection.

They wanted to make sure that that rule was not cut off by the Jencks statute.

And Mr. Justice Brennan, if I -- I think that this is the explanation of the change -- of the omission of the original exclusive language at subsection (a) and the change in the conference.

I think this is the true explanation of that change because under the language, as it was originally worded, that is no reports would be producible except as provided in subsection (b).

And if you had some material or summary, for instance, which was not producible under subsection (b) because it was not a verbatim or substantially verbatim statement, but it was used by the witness om the stand to refresh his recollection at that time under the literal terms of this -- of the bill as it was worded before the conference, that would not have been producible to the defense counsel because it would have been excluded.

And I think that the true -- the true reason for the change in the language to which both you and the majority of the Court adverted in the Palermo case was to continue the rule of the Goldman case from materials which were used to refresh recollection because the rule, as I hope to be able to say for few minutes later on, the rule of the Goldman case is that where material is used on the stand, it's almost automatically producible not always, where it is used off the stand then it is producible within the discretion of -- of the trial judge.

And I think that this is what people like Congressman Cellar and Senator Ommaney were worried about that the Jencks Act might cut off an accepted rule which no one was challenging.

Justice William J. Brennan: I would seem -- as I recall -- am I right?

Neither of them mentioned it explicitly in (Voice Overlap) --

Mr. Oscar H. Davis: No, I -- I would cast a little warning on this that in our brief, we inaccurately say that Congressman Cellar opposed an amendment relating to refreshing recollection, that is not so.

There -- the -- an original bill which was just read on the floor in order to have something else substituted contained this information.

They didn't -- any of them referred to that.

But they did refer generally to preexisting rules of law that everyone accepted that preexisted Jencks, I meant, or the Jencks case.

And that no one wanted to do away with it.

And they were afraid that the Jencks bill, as it was originally formulated, would do a way with these old rules of law.

Now, why do I say that -- that there is a great difference between personal uncommunicated notes and the kind of statements which the -- the Congress was interested in -- in producing for the defendant, and which the Court in the Jencks case was interested in producing.

We all know that personal notes that people make that -- that I make, that members of the Court make, that other people make vary with the personality and habits and everything else of the individual note taker.

Some of them can be made on scratch pads and pieces of paper and written upside down.

Some can be -- some people use just keywords that -- that reveal to themselves because, of course, they notice for their own benefit.

A keyword may reveal a whole massive material to the individual because he doesn't have to worry about anybody else, it's for his own benefit only.

The one word, saw Joe Smith, as I'll try to describe later may -- may recall the history of the entire conversation with Joe Smith even if he doesn't set out all of the things that Joe Smith said to him.

The Court may think that when government agents either the Narcotics Bureau or the Federal Bureau of Investigation go out that they have a kind of form for reports for their notes, I mean, and they followed.

That is not so.

They -- they follow their individual event and some of them -- some of the notes are, I should imagine, very detailed because that is the way the agent does it.

Some other agents have -- have sketching notes, fragmentary ones using keywords just to jot their own memory.

And there are all kinds of gradations and permutations and -- and combinations.

It can -- it can depend upon the situation.

If an agent is standing up at a place talking to somebody, he can't write something very adequately in his -- in the palm of his hand on a small card or a piece of paper.

He may then go back to the office and write it up more fully.

Or, on the other hand, if he is interviewing a man in the office and the man gives him a desk to sit down at, he may take fuller notes.

It may all depend upon the situation, the needs of the moment, the time at his disposal and so forth.

Now, the general practice, as I understand it, both of the Narcotics Bureau which is involved in this particular case and of the Federal Bureau of Investigation is that these notes are -- are sources from which the agent then uses to continue his investigation and to write a more formal kind of report such a case report, which was written in this case, and which was transmitted to the Government for use in the prosecution and -- and to the defense counsel.

There is a whole world of difference between the things that one writes for oneself because you only have to worry about yourself and you know your -- you know your own memory, and you know how one word may reveal something to you.

There's a whole world of difference between that.

And when you want to communicate it to somebody else and have the other person know what you are talking about.

Let me try to give an example to the Court.

Suppose the note said, “I saw Joe Smith, I saw Joe Smith.”

And the agent got on the stand and he testified that he saw Joe Smith at a certain time, certain place.

And he -- Joe Smith told him this and he answered that and so forth.

And suppose this note was used in -- for impeachment purposes and the -- the defense counsel would say, “Well, you only wrote you saw Joe Smith.”

And the witness would say, “But that's my practice.

The words saw Joe Smith will recall to my mind the entire conversation I had with Joe Smith.

That's always been my practice.”

And the defense counsel says, “Well, how do you know it's your practice?

It just says you saw Joe Smith here.

It doesn't say that -- what he said to you and what you said to him or anything else.

How do you know it's your practice?”

And the -- and the witness says, “That's always been my practice.

I have that kind of a memory.”

And defense counsel says, “Can you prove it?

Can you bring in your other notes?”

Well, you will then get into exactly the kind of trial confusion and collateral issues which we think that Congress was trying to avoid in the Jencks Act.

There is a probable situation with respect to the -- to summaries and other recordations which were not substantially verbatim.

Congress was afraid in the end that material of this kind which contained the recorder's selection, perhaps the recorder's bias, perhaps the recorder's impressions or -- or suggestions that that was not proper material for impeachment purposes that the only proper -- because it would take too long to -- to, what shall I say, strain out that portion of this recorded summary, which was really properly attributable to the witness, and that which was not, which was the -- the recorder's infusion.

Now, of course, if men were angels, that we were all perfect, juries and judges and -- and defense counsel and prosecution, and we will -- no one was confused by -- by the things you could spend days, try to figure out precisely what was attributable to the witness and what was not.

The Congress decided and -- and the common lawyers has decided that men are not angels and there is too great -- a chance of confusion and too greater chance of collateral issues delaying and -- and confusing both the jury and the -- and the parties to the trial to allow long drawn out investigations of collateral issues.

And we think the same principle is applicable to -- to personal notes which can -- as I say, vary from fragmentary jottings to the kind of narrative notes that -- as I understand Judge Learned Hand made when he was a -- a trial judge and which we're very full and very revealing to anybody else.

And because you can't tell, you can't tell what the notes are like because a fragment -- you don't really know whether the note is only fragmentary or not until you really investigated and find out what the agent's practice is and what his habits are and so forth.

That, on the whole, there is too little to begin --

Justice William J. Brennan: Mr. Davis, I think you said to us yesterday, however, that at least at the agent's notes has been transmitted to his superior, I don't think he went by this far, if he merely (Voice Overlap) --

Mr. Oscar H. Davis: (Voice Overlap) --

Justice William J. Brennan: -- in his file.

But nevertheless, with all the imperfections which you suggested appear in such notes, yet they would qualify to that.

Mr. Oscar H. Davis: Well, I think there are two things I would say about that, Mr. Justice, one is that I think then they would fall within the terms of the statute and whether a statute is written in broad terms, then it covers things that -- that don't really fulfill the original purpose, but you have to interpret the terms of the statute in -- in square so that it -- whatever the terms the statute cover, you will apply.

But the second and the more important thing is that when a man communicates his notes, he indicates that he thinks they're going to be understood by somebody else.

He's sending it to another agent or his superior with the notion that they'll understand what this is about.

If he gets --

Justice William J. Brennan: Yes, but suppose -- I notice you have them on that envelope (Voice Overlap) --

Mr. Oscar H. Davis: Because we asked the agent for them.

He -- he prepared -- suppose he just prepared this report, do you think that this is an infinitive report compared to those notes?

Mr. Oscar H. Davis: And other things, probably.

Justice William J. Brennan: And forwarded them and merely said, “My notes are in this envelop.”

Mr. Oscar H. Davis: That would indicate that he thought that the other people who are going to pass upon this for the Government in deciding whether to prosecute and to prosecute would be able to get out of these notes a full statement of what was going on.

Justice William J. Brennan: Well, that very package of notes, I gather, this record shows, had been transmitted as I have suggested in the final report.

It would have been producible, would it not?

Mr. Oscar H. Davis: Yes, yes.

But I -- what I'm saying is that the fact -- that the fact that the agent does transmit them brings in to the case the hallmark of his belief that they have an objective quality and so can be understood by other people.

Justice William J. Brennan: We don't know whether the fact is or not that that package was transmitted to his superior, do we?

Mr. Oscar H. Davis: Well, you don't know that but we have investigated and I can assure the Court to the best of our understanding.

Justice William J. Brennan: It was not.

Mr. Oscar H. Davis: The agent has said it was not transmitted.

He has written us to (Voice Overlap) --

Justice William J. Brennan: Yes, you told us that.

Yes.

Mr. Oscar H. Davis: Yes, that -- that he -- he has not.

I would not make the argument that -- that if -- if we didn't know this and --

Justice William J. Brennan: Yes.

Mr. Oscar H. Davis: -- and --

Justice Felix Frankfurter: No inquiry was made of the witness --

Mr. Oscar H. Davis: No.

Justice Felix Frankfurter: -- during -- on -- on the stand.

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

No inquiry was made of the witness on the stand.

That could have been.

And that basically is -- is our argument as to why the Jencks Act doesn't apply.

And then, you come to the second question which we think is in the case and that is, suppose the Jencks Act does not apply and these documents, these notes were not compellable as of right under the act, are they compellable or can the judge compel them?

Because they were used as the agent said on the stand to refresh his own recollection.

Now, the -- the Goldman case in 1942 adopted for the federal court the majority rule of -- or the majority rule of the -- of the states and federal courts up to that time which was that materials which were used by a witness not on the stand but prior to taking the stand to refresh his recollection were producible in the discretion of the trial judge.

Now, we do not think that that part of the Goldman rule was abrogated by the Jencks Act as to materials which are used to refresh recollection.

I try -- I try to make my self clear, the -- the Jencks Act, as this Court held in the Palermo case last year, provides for the automatic production of, what shall I say, of -- of statements or reports, which are properly attributable to the witness.

And it provided that there was no discretion in a trial judge to require the production of reports or summaries which were not properly attributable to the witness.

Now, suppose you have one of the latter con, a summary, which is not compellable under the Jencks Act, as interpreted in the Palermo case and suppose the witness says on the stand, “Yes.”

Suppose the witness on the stand uses it to refresh his recollection even though it's a summary, we do not think that the Jencks Act says that cannot be given to the defense counsel.

We think that that portion of the Goldman rule survives and similarly within the discretion of the Court and as I've indicated, the -- the rule has been that unless there are very serious reasons against giving it, the rule is where the man uses it on the stand, you give it to him.

Now, you have a similar summary, if you may say, which the witness says, “Yes, I used it before I took the stand to refresh my recollection,” that's not, as the Palermo case, held compellable as of right under the Jencks Act.

But we think that it is still in the discretion of the trial judge to decide whether it should be produced.

Justice William J. Brennan: Well, now, what did we mean, do you think, then, Mr. Davis, what we said in Jencks, the Court held in Goldman that the trial judge had discretion to deny inspection when the witness “does not use his notes or memoranda relating to his testimony in court”?

We now hold that petitioner was entitled to an order directly.

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

Justice William J. Brennan: What do you mean by that?

Mr. Oscar H. Davis: I think that the Court held in Jencks that Goldman was overruled to the extent that it gave discretion to the trial judge to require the production of certain types of documents, but then along came the Jencks Act and substituted for the --

Justice William J. Brennan: But we're -- we're -- I thought this argument was on the premise that this is something not discoverable under terms of the Jencks Act.

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

Justice William J. Brennan: That they are notes which were used admittedly by the witness --

Mr. Oscar H. Davis: To refresh his recollection.

Justice William J. Brennan: -- to refresh his recollection before he took the stand.

And I thought you said that those might still be producible to the defense --

Mr. Oscar H. Davis: That --

Justice William J. Brennan: -- under the Goldman rule within the discretion of the trial judge --

Mr. Oscar H. Davis: Because we do not --

Justice William J. Brennan: -- except as the Goldman rule may have been affected by what I just read to you.

Mr. Oscar H. Davis: No.

My view -- our view is that the Goldman rule was not completely abrogated or overruled in the Jencks case.

And that that portion of the Goldman rule which survived the Jencks Act was the part which said that where something which is -- which is not producible under the Act, but which is used to refresh recollection is still producible in the discretion of the trial judge.

In other words, we would not say that the Jencks Act and I think the legislative history, though it doesn't bear this out affirmatively in its basic premises, bares out, as I said before, the notion that Congress did not intend to abrogate the rule as to refreshing recollection either on a stand or prior to a stand.

And so that what -- what you -- if I can summarize and perhaps made myself a little clearer, if you have materials that are producible as of right under the Jencks Act, they're producible whether or not they've been used to refresh recollection.

If you have materials which are not producible under the Jencks Act because summary as held in the Palermo case, they are not producible even in the trial court's discretion unless they are used to refresh recollection.

If they are used to refresh recollection, then the trial judge has discretion.

Justice William J. Brennan: That is unless you said contrary here at Jencks.

Mr. Oscar H. Davis: Well, I -- I would think that you -- that you didn't overrule Goldman completely, and -- and if you did I would think that you should reinstate it in -- in the Needelman case because it's a good rule and -- and that where materials have been used to refresh recollection, the trial judge should have discretion.

So I come to the question as to whether there was an abuse of discretion in -- in this case.And as the Court of Appeals passed on that issue and said there was not.

And as I've already indicated, what the defense counsel did get was this voluminous case report.

He had the testimony of Agent Rudd at the prior trial.

He had also the testimony of Agent Waters at this trial, who was also present.

He had the possibility of calling Agent Bellinger of Florida State Narcotics Squad, who was the only other person aside from Dr. Needelman present.

We also know that he did not make any effort to find out what kind of notes these were, what they bore on, how extensive they were.

And whether or not that further inquiry by him was relevant to the question of what -- whether the Jencks Act required production as of right, we certainly think it's relevant to the issue of discretion, that is that we, the Government, are right.

The Jencks Act did not compel production.

Then, you have the question of the discretion.

We certainly think that it's -- it's highly relevant to the issue of discretion that the defense counsel did not seek to go further as he could have gone to find out what these notes were about under what conditions they were made, what the relation to the case report was, how fragmentary they were, how full they were.

All these things which he could have -- have gone into but he did.

Justice William J. Brennan: Whether in -- when Goldman tried, had there been any development of requirements of this nature before the trial judge call upon exercise of discretion?

Mr. Oscar H. Davis: Well, I think some of the -- the cases don't say it explicitly but they go into the question of -- of the reasons why the production should be allowed or not.

And I would say that most of the cases did not allow production, that is in most of the cases, the -- the Court exercise discretion against production where the material was not used on the stand.

Justice William J. Brennan: Because again, we're faced here with the fact that the trial judge, so far as the record appears, had no knowledge or whatever of the contents of these notes.

He never looked at it.

Mr. Oscar H. Davis: He could have been asked to look at, as it has been done in other cases.

And this, perhaps, is an appropriate point to deal, as I think I tried to yesterday, I will deal with it more fully with -- with the other cases which have said that because the materials is not in the record, we will not consider.

There were cases, the -- the Holmes case in the Fourth Circuit and the Ninth Circuit case of Bradford were cases where the defense counsel made an effort.

The judge said, “I want to look at them.

I'll hand them back.”

Well, of course, if the defense counsel makes the effort and the judge won't comply, then he's done all of that he could.

Now, on the other hand, you have the Miller case in the Second Circuit.

That is 248 F. 2d 163, where the party stipulated that the challenged document should not be included in the record on appeal.

On the Second Circuit, applying the Jencks case, this -- not the Jencks statute, he said, “It's the burden of the defense.”

If they think that -- that something was prejudicial -- refusal to give them something that's prejudicial, they should have stipulated.

It should be admitted from the record.

Now, I draw from that, the -- the general proposition that the defense counsel should go as far as he could in protecting his record, and this, of course, is a -- is a general principle of Anglo-American law, Rule --

Justice William J. Brennan: I suppose you could carry that.

It may -- could be, I suppose, in that hiatus and the jury was sent out and then his motion was acted for production.

Some of the things that you say should have been done -- may have been done but they're not in the record because apparently, whatever that colloquy was, it was not transcribed.

Mr. Oscar H. Davis: Well, the defense counsel could then ask.

Justice William J. Brennan: Well, I gather, you're carrying this to the extent of saying that was up to the defense counsel (Voice Overlap) --

Mr. Oscar H. Davis: They took -- they took to the appeal -- the appeal to the Fifth Circuit and they took appeal on this issue.

If they thought that the record did not contain everything which had transpired of the trial, they could have asked for further record if one was available.

Justice Felix Frankfurter: Well --

Mr. Oscar H. Davis: Now --

Justice Felix Frankfurter: -- is it a common place thing when counsel go into private talk with the Court, and then make motions which are desired not to be made in the presence of the jury or have discussions not desired to be heard by the jury with any ruling by the Court adverse to a party, it is then formally stated, a motion of this sort was made and denied, the -- the most commonplace thing in trial.

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

And there was -- there would be no objections of their saying --

Justice William J. Brennan: Well, the -- the thing that puzzles me about this, Mr. Davis, is that the action on the motion was taken down stenographically transcribed because it's in the record.

Mr. Oscar H. Davis: Well --

Justice William J. Brennan: Nothing that preceded the Court's action appears.

Mr. Oscar H. Davis: It -- it has puzzled me, Mr. Justice Brennan, but from my resolution of this, I rely on the old established principle that the person who was seeking the admission of evidence or production of documents has the burden.

Then the person who's appealing has the burden with relation to the Fifth Circuit.

The person who's petitioning this Court has the burden when he comes here.

And my opponent is in that -- each one of those positions.

And we think that the Court has applied this in Hoffman against Palmer in 318 U.S., as -- as I said yesterday.

We think the Court applied it last year in the Pittsburgh Plate Glass case with respect --

Justice Felix Frankfurter: But you used the word “burden” as though this is a heavy load --

Mr. Oscar H. Davis: No.

Justice Felix Frankfurter: -- that somebody has to carry.

Mr. Oscar H. Davis: I -- I can --

Justice Felix Frankfurter: All that required counsel to say, counsel moved the Court, asked the Court to look at the record and look at the notes we questioned, and the Court declined.

That's all that's required.

Mr. Oscar H. Davis: That is right.

Justice Felix Frankfurter: Burdensome as though you put a ton on it.

Mr. Oscar H. Davis: Well, I didn't mean that because it is very difficult.

And Rule 51 of the Federal Rules of Criminal Procedure provide that it's the -- or the -- the duty of the -- of the lawyer to make clear to the judge what his -- what the lawyer's position is so the judge can rule on it.

All these things together --

Justice Felix Frankfurter: For the appellate court knows what has been done and whether what was done was right or wrong or was allowed the discretion or not allowed the discretion.

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

So, in our view, the whole duty and obligation of showing an abusive discretion was not availed itself out by the -- by the defense in this -- in this case.

There's one further fact that I -- I want to mention on the question of discretion, and that is, that we know from just reading the record that the -- the defense had the case report available to it which he had only asked for it at the very end of the examination of the agent.

And that it had his -- his trial -- his testimony at the prior trial.

It didn't apparently make any use of this as far as we can say.

And this also bears on the question of whether the request of the notes here was really a serious one.

I have come to the conclusion, I may be wrong, reading this entire record that at the trial, it had a very small role.

And that when the appeal stage came, it loomed much larger and that's the right of the defense counsel.

But I don't think that the defense counsel can take such a position and -- and rely on their own luck of -- of making a record as -- as was done here.

Now, we've also made the argument that even if these materials were producible either as of right under the Jencks Act or where there was an abusive discretion by the trial judge under the -- the portion of the Goldman rule will survives that -- it was harmless in this case because of the materials which the -- the defense counsel had his ability to -- to cross-examine the agent on the basis of the case report on the agent's prior testimony, the testimony of the other agent, Agent Waters, his ability to call prior to state narcotics agent Bellinger.

And the fact, as I have just said, that he made -- as far as we can say, no use of -- of these materials which were available to him.

Again, it's indicating that the -- the failure to receive these notes did not play a significant role at the actual trial as far as this record reveals.

In closing, if I may, I -- I would like to make -- summarize really two or three points.

And one is that we think that it's very important that if defense counsel are to claim failure to receive certain materials that they have the burden of making a proper record so that the appellate court, the Court of Appeals or this Court can make a proper disposition of that claim, that they are the ones who are asking for the materials or the evidence and under the traditional rules, as I've said, it is their duty, their obligation to make the proper record, and that they cannot rely on a failure to make the record on the mercy of -- of the Court of Appeals or of this Court really to infer that a lot of things happened which don't appear on the record.

And the -- the second final statement I would like to make is about the nature of these notes and that as I said, government agents are no different from other people but they make fragmentary notes, some of them.

Some of them may make full notes.

Some make fragmentary notes, jottings, things to remind them -- them of -- of events wholly unimportant for other people because the only person they are interested in at that time was themselves.

They just want to remind themselves.

And for a man as reminded by one word, that's enough for himself.

Justice Earl Warren: Mr. Warren.

Argument of Herbert A. Warren, Jr.

Mr. Herbert A. Warren, Jr.: Mr. Chief Justice, may it please the Court.

First, with further reference to questions asked by Justice Harlan, there is also a comment by the trial court, Judge Choate on page 18 of the record at the time of sentencing, embracing the petitioner upon probation, he makes a statement, “I do that for the reason that I still believe that perhaps you were just careless.”

That's my understanding --

Justice Felix Frankfurter: But the case -- the -- the sufficiency of the evidence to go to the jury, was that a claim made here and asking for review?

Mr. Herbert A. Warren, Jr.: Not in this Court.

No, sir.

Justice Felix Frankfurter: I mean it wasn't even presented.

It wasn't merely -- the Court restricted it.

But I -- let's look at it.

The petition was granted without restriction.

Mr. Herbert A. Warren, Jr.: That's right, but there were no questions posed as to the sufficiency of the evidence.

Now, it's my --

Justice William J. Brennan: Mr. Warren, now, was the first trial before another judge?

Mr. Herbert A. Warren, Jr.: It's my understanding that it was before the same judge, Judge Choate.

Justice William J. Brennan: It was the same judge.

Mr. Herbert A. Warren, Jr.: Yes, sir.

And I'd like to point out to the Court the fact that the motion which was made subsequent to the conspiracy trial and before the consolidated trial refers specifically to the fact that the agent, Rudd had testified at the first trial, and that the contemporaneous notes were testified to at that trial and states -- which said contemporary notes have already been referred to by the said agent Rudd in the previous trial of the said cause and by which testimony, it was shown that said contemporaneous notes prepared by the said run were of the events, activities related to the said testimony.

Justice John M. Harlan: Where does that appear?

Mr. Herbert A. Warren, Jr.: That appears on page 8 of the record, sir.

Justice Potter Stewart: That -- now, that -- that motion which appears on page 8 is not the one that was later already denied by -- page 193, whatever it was.

Mr. Herbert A. Warren, Jr.: No, sir.

It -- it was, I believe, a renewal of that motion and the Court of Appeals in its opinion said, “We assume in response to a renewal of this motion.”

The judge then made his ruling, “I will deny the request for the notes because they may involve many things.”

Justice Potter Stewart: Well, I -- I don't understood yesterday and perhaps I misunderstood it that this motion, this written formal motion appearing on page 8 in the top of page 9 of the -- of the record was denied and --

Mr. Herbert A. Warren, Jr.: Yes.

Justice Potter Stewart: -- and that it's -- there's no claim of error in the denial of this particular motion.

Am I mistaken about this?

Mr. Herbert A. Warren, Jr.: In framing our questions and our petition, we did set forth that the motion was made prior to trial and then renewed after the witness had testified and we claimed that the trial judge in denying the motion did commit error in not following the procedures of the statute.

Justice John M. Harlan: What this look --

Justice Felix Frankfurter: (Voice Overlap) --

Justice John M. Harlan: Excuse me.

What this looks like, maybe this is all wrong, particularly in view of your statement that this case was tried before the same judge.

It looks like to me that the motion on page 93, is it?

Mr. Herbert A. Warren, Jr.: They come in the 93 for --

Justice John M. Harlan: 93, following the discussion with a sort of giving counsel an opportunity to put an exception into the records that really stem back to the original denial of these earlier motions.

Mr. Herbert A. Warren, Jr.: Yes, sir.

Justice John M. Harlan: And with one of those off the record discussions that the -- I'd like to have the record show that this motion was renewed.

Mr. Herbert A. Warren, Jr.: That tried after what (Voice Overlap) --

Justice John M. Harlan: That's about what it looks like, didn't it?

Mr. Herbert A. Warren, Jr.: I believe that is a --

Justice John M. Harlan: Not much more than that.

Mr. Herbert A. Warren, Jr.: I believe that is a fair statement.

Yes, sir.

Justice Felix Frankfurter: Mr. Warren, I don't -- I don't think I quite understood or at least appreciate you answer to Justice Stewart's question.

The motion that has been denied -- the motion that was denied as you quoted on page 9 and 10.

Mr. Herbert A. Warren, Jr.: Yes, sir.

Justice Felix Frankfurter: Is that the motion to which reference is made on page 93 to deny the request for the notes?

Mr. Herbert A. Warren, Jr.: It is my assumption that and I can say from speaking to trial counsel that the motion was renewed.

It is not reflected in the --

Justice Felix Frankfurter: Well, what -- I don't understand that.

When you say the motion was renewed, you mean the motion that was formally -- that was denied the record -- the recording of denial of which on page 9 and 10 was renewed?

Mr. Herbert A. Warren, Jr.: Renewed as far as production of the contemporaneous notes.

Yes, sir.

Justice Felix Frankfurter: Well, but there is no reference in that.

It seems to me a totally different transaction in 88.

There was testimony about these notes and then there was this recess, and I will deny the request for the notes.

Mr. Herbert A. Warren, Jr.: Yes, sir.

Justice Felix Frankfurter: Are you now saying that the motion, the pretrial motion on page 9 was -- were those notes?

Mr. Herbert A. Warren, Jr.: Yes, sir.

Justice John M. Harlan: Did they --

Mr. Herbert A. Warren, Jr.: They are the same notes, the notes that had been referred to in the first case and where again, the subject of the discussion in the second case.

Justice Felix Frankfurter: Well, how do we know that?

Is that we -- have we got -- is the motion here identifying what was the -- the motion, the order on motion is for the production of documents.

Mr. Herbert A. Warren, Jr.: Yes, sir.

Justice Felix Frankfurter: Now, what is then in this record that would enable me to see -- to say that the motion for production of documents was the motion for the production of these notes?

Mr. Herbert A. Warren, Jr.: The statement in the motion for -- for production of documents.

Justice Potter Stewart: Is that on page 8 you're talking about the Court, on the top of page 8?

Mr. Herbert A. Warren, Jr.: On page 8.

Yes, sir.

The motion specifically says particularly the -- the documents which are requested particularly, the contemporaneous notes made by the government witness Kenneth Rudd who has previously testified in said cause and who is a material witness for the Government in said cause made by the said Kenneth Rudd during his investigation in preparation for trial of said cause and which said contemporaneous notes have already been referred to by the said Rudd in the previous trial of said cause.

Justice Felix Frankfurter: Well, then, this mean that -- what I asked Mr. Davis, that this -- the production of these notes had emerged at the first trial.

Mr. Herbert A. Warren, Jr.: There had been discussion over that first trial, as shown by this motion.

Justice Felix Frankfurter: So that, that makes all the most significant to me at least, that in examining Rudd about these notes, no questions were asked as to the nature of the notes as to the bearing of inconsistency, as to the potential conflict and above all, in asking the Court to look at them --

Mr. Herbert A. Warren, Jr.: Yes, sir.

Justice Felix Frankfurter: Is that right?

Mr. Herbert A. Warren, Jr.: That is correct.

But I will say this, that it's our position that it's not necessary for the defendant to --

Justice Felix Frankfurter: I understand that, but I just wanted to make sure what it is that was put before the trial judge on which he ruled and on the basis of which the Court of Appeals decided what it decided.

Mr. Herbert A. Warren, Jr.: Yes, sir.

Justice Felix Frankfurter: And the basis on which the case comes here.

Justice William J. Brennan: I suppose, Mr. Warren, this might also have happened, prosecutor, defense counsel and Judge Choate, that he did try the first --

Mr. Herbert A. Warren, Jr.: Yes, indeed, sir.

Justice William J. Brennan: -- case.

Had been all through this on a go-around for all that appears, everything that now seems missing here may all have been developed in the first trial and Judge Choate had refused to turnover the notes and they just persisted in that.

Mr. Herbert A. Warren, Jr.: That's correct, sir.

Justice Felix Frankfurter: And was there anything to prevent trial counsel from having it recorded that they asked Judge Choate to look at those?

Mr. Herbert A. Warren, Jr.: No, sir.

Justice Felix Frankfurter: And nothing appears that such a request was made?

Mr. Herbert A. Warren, Jr.: No, sir.

Justice Tom C. Clark: (Voice Overlap) --

Justice Felix Frankfurter: You mean yes, they're not (Inaudible)

Nothing appears --

Mr. Herbert A. Warren, Jr.: Nothing appears in the record.

Justice Felix Frankfurter: -- that such a request was maybe either at the first trial or in the second?

Mr. Herbert A. Warren, Jr.: That's right, sir.

Justice Tom C. Clark: You just have said that your request on 93 referred back to the motion.

Mr. Herbert A. Warren, Jr.: I tried.

I assumed and I think --

Justice Tom C. Clark: (Voice Overlap) --

Mr. Herbert A. Warren, Jr.: -- I fairly saw that when the judge says, “I will deny the request for the notes,” that there must have been a request for the notes.

Justice John M. Harlan: Without asking to go off the record, is it fancible to suppose in the proportion where there's -- 93, that counsel said, “Your Honor, may the record show that the motion that I made before trial for the production of these notes which you deny was new to the trial and is likewise denies the trial”?

Mr. Herbert A. Warren, Jr.: I don't think it's fancible in the least, Mr. Justice.

Justice John M. Harlan: You don't think it's fancible at all.

Mr. Herbert A. Warren, Jr.: No, sir.

As to the case report, which was filed here by the Government, I think Mr. Davis made a statement which points out the significance of that report very clearly.

He described it as what the Government could rest its case upon.

Now, this report was made some six weeks after the interview with Dr. Needelman.

It was made some two weeks after the indictment had already been returned in the first case.

And I think it's obvious from reading it that the Government was preparing their case for trial and there can a world of difference between what the witnesses were testified to and the recording of the events made as those events actually happened.

Justice Felix Frankfurter: You said at the time you started the investigation of this case, is there anything in the record to indicate that he made notes that this doesn't refer to notes made weeks before he ever talked -- the day before he ever talked about the Needelman.

And that he talked to other people who then led him for -- talk with whom, led in to Dr. Needelman.

Is there anything in the record to -- he said lied on that?

Mr. Herbert A. Warren, Jr.: No, sir.

The Government seems to try to make their distinction on whether or not the notes were communicated, and I submit that the communication adds nothing to the value of the notes, the primary point considered by this Court in the Jencks case and I think the primary point of the statute is the fact that the witness himself has, at a time, when his memory was fresh, made a notation as to what occurred.

And if he just puts that in his pocket and never looks at it again until he takes the witness stand, it still just as valuable to the defense and cross-examination and just as valuable in ascertaining the truth of what actually happened at the time that he made that recording.

Now, this Court in Jencks, of course, over turn the idea that we -- that the defense counsel had to show any inconsistency between the prior statement of the witness as a prerequisite to having it produced.

And I think the contention of the Government now to place upon the defense, the burden, if you wish to use that word, the burden of showing that the notes would be intelligible would fall within the same category.

It's our position that the Jencks' case holds very clearly and very precisely that the only thing which is necessary to be shown is that the witness has made a prior statement relative to his testimony.

And when that appears, everything which is necessary for production purposes has been shown.

This Court in Jencks referred back to the decision in the Gordon case and said for production purposes, it need only appear that the evidence is relevant, competent and outside any exclusionary rule.

When it appears that the witness who is testifying has made a prior statement concerning his present testimony, certainly his prior statement is relevant.

He made himself so it's competent.

He's already testified so there is no exclusionary rule or evidentiary privilege which (Voice Overlap) --

Justice Felix Frankfurter: The Jencks -- the Jencks case was a confrontation of present testimony of a witness reported to a government agent --

Mr. Herbert A. Warren, Jr.: Right, sir.

Justice Felix Frankfurter: -- as against a report made by government agent of a prior statement by that witness, is that this case?

Mr. Herbert A. Warren, Jr.: No, sir.

But the same principle has appeared because it is the fact that the witness has made a prior statement.

In the Jencks case, it was a witness who had made a statement to a government agent, but it was his statement, and the Court said it was his statement could probably be used to impeach him and therefore, should be produced.

The same --

Justice Felix Frankfurter: And you say it's irrelevant that the Government now offers a witness who says -- now offers as a government official who says, the witness made this and this statement to me, and that same government official previously made a report of the same statement by that witness.

Do you think that (Inaudible)?

Those are quite unimportant facts in the determination of the decision of the Jencks case fully apart from the fact of what the Jencks statute did to the Jencks case.

Mr. Herbert A. Warren, Jr.: I think the primary consideration is that you can impeach the government witness but only by his own statement.

Now, if it's a witness who is not a government agent, the report is in the hands of the Government.

They can claim an exclusionary privilege there.

Jencks says that that exclusionary privilege does not apply where the witness has testified and it's his report producing.

So you can impeach him with it.

Here, you have one step eliminated because the agent is the witness himself, for the witness is the agent.

There is already the exclusionary privilege there but once he testifies, then his prior statement no longer has that exclusionary privilege, it is just as competent to impeach him as was the reports of the --

Justice Felix Frankfurter: But you're --

Mr. Herbert A. Warren, Jr.: -- witnesses in the Jencks case.

Justice Felix Frankfurter: -- but you are saying that as a matter of law, as a matter of law, if I testified in something subject to cross-examination and it appears that I scribbled some notes which I looked at before I testified that as a matter of law, without law, just that fact, requires the trial court to make me produce my notes --

Mr. Herbert A. Warren, Jr.: Yes.

Justice Felix Frankfurter: -- is that what you're saying?

Mr. Herbert A. Warren, Jr.: Absolutely.

Yes, sir.

And I think that is the basic calling of the Jencks case in my -- in my opinion.

Justice Felix Frankfurter: Well, but the Jencks case had taught me different situation.

It's the responsibility of the Government in vouching for a witness who now makes one report of his talk with the -- with the person and previously had filed another report of his (Inaudible).

And those things seem to you immaterial.

Mr. Herbert A. Warren, Jr.: Perhaps, I misunderstood you question then, because in our situation where the government agent is the witness, the Government is certainly vouching for his testimony and if he has notes in the possession of the agent, they are just as much notes of the United States as if they have been put in some other file.

Justice Felix Frankfurter: In the first place, I don't think that's so.

But in the second place, you didn't ask for them.

Mr. Herbert A. Warren, Jr.: We asked --

Justice Felix Frankfurter: You didn't ask for the judge to pass on whether or not, in the interest of general fairness, there is any reason for having the witness who is also a person, a private person producing private jotting, that I remember this day because it was my son's birthday.

Mr. Herbert A. Warren, Jr.: And it's our position that all we need to show is that they -- the notes are relevant to his prior testimony and once that it --

Justice Felix Frankfurter: But you didn't show that.

You simply -- you didn't show that.

You didn't ask the judge to determine that.

You simply prove that at the beginning of his investigation, he made some notes.

Mr. Herbert A. Warren, Jr.: Right, sir.

Justice Felix Frankfurter: And you're assuming everything when you say that they're relevant to this.

You draw that relevance merely from the fact that he made jottings to -- not -- not just memory.

Mr. Herbert A. Warren, Jr.: That's right.

He made notes during his investigation then he testified as to his investigation.

Now, if the Government wants to claim --

Justice Felix Frankfurter: We don't have a date what -- made the notes about afford to had anything to do with what he testified.

And you didn't --

Mr. Herbert A. Warren, Jr.: But we --

Justice Felix Frankfurter: -- ask the Court to examine that and make his own judgment about it.

Mr. Herbert A. Warren, Jr.: Right, sir.

We think that after we had showed just what we had shown, there was then the burden of the Government to assert that it does contain a relevant matter and at that point, then the judge steps in under the statute and makes the determination as to what portions are relevant and should be turned over and what portions are not.

Now, as to some of the cases, as to the procedure followed by defense counsel in requesting production of the notes, I've already mentioned the Jencks case.

In that case, the defense attorney moved for an order directing an inspection of reports dealing with meetings about which he -- the witness had testified.

The trial judge denied the motion.

There was nothing further done by defense counsel in any request that the judge examined the notes in camera or that the notes be made a part of the record.

In the Holmes versus United States case in our brief in the Fourth Circuit, the agent testified as to his investigation, the defense then demanded production of the memoranda and report prepared during his investigation and recording its result.

The file was tendered to the trial judge.

The trial judge declined to read the reports, place a responsibility upon the FBI agents and the prosecution to determine which reports should be delivered.

The Fourth Circuit said that that was error to do that, that the statute places an affirmative duty upon the trial judge himself to make the determination once the Government asserts that the notes or the document does contain any irrelevant matter.

In the Bradford case of the Ninth Circuit, it's cited in our brief, the examination by defense counsel of the government agent was very similar to the examination in this case.

He asked him, “Did you make notes?”

And in fact, he said he did.

“You refresh your recollection with those notes?”

“Yes.”

Counsel then requested production of the notes.

The trial judge denied the motion for production.

The trial counsel again said that he wanted the notes produced.

The Court then, on its own volition, examined the notes, determined that they should not be handed over, handed them back to the witness.

They were not made apart of the record in the case.

There was no request by the trial counsel that they be made a part of the record of the case and the Court of Appeals said that appellant's counsel in this case did nothing less in the trial counsel in the Jencks and reversed the trial court because of its action in that regard.

Now, we say that we've done everything necessary in this case to get production of the notes.

If the Government wanted it to assert that they did contain irrelevant matter, they should've done so, then the judge would step in and make the determination.

Justice John M. Harlan: Could I ask you a question?

Supposing the judge had said, “Hand me these notes,” to the United States Attorney and he take and look at them and said no motions denied.

What would have been your position then?

Mr. Herbert A. Warren, Jr.: The same as it is now.

Justice John M. Harlan: He'd still be entitled to this?

Mr. Herbert A. Warren, Jr.: Yes, sir.

As far as Goldman is concerned, perhaps it still has some validity where the document is not fairly attributable to the witness himself.

If it is, that the witness is using a summary of someone else to refresh his recollection, then perhaps the trial judge, in his discretion, can require the production.

But where the document is the witnesses' own document, Goldman can have no further application because if it is his own document, then it is producible.

I'd like to close with just an adoption, if I may, of the words of Mr. Davis which he used before this Court in argument on Lev versus United States and other connected cases.

In arguing with reference to summaries made by agents of witnesses' testimony, it was suggesting that counsel could call the agent himself and cross-examine him.

And in response to a question to Mr. Justice Black, that if the agent denied the purpose contained in the summary, then Mr. Davis made the statement then the memoranda could be produced since it was the agent's own document and would be producible.

And I think that very well sums up the entire law and reason applied to this case and to this situation.

The notes for Rudd's own document and since it was his own document, it would be producible.

Thank you.

Justice Earl Warren: We may recess.