UNITED STATES v. NOBLES
Legal provision: Self-Incrimination
Argument of Paul L. Freidman
Chief Justice Warren E. Burger: We'll hear arguments next in 74-634, United States against Nobles.
Mr. Freidman, you may proceed when you're ready.
Mr. Paul L. Freidman: Mr. Chief Justice, and may it please the Court.
This case is here in a writ of certiorari to the United States Court of Appeals for the Ninth Circuit.
The issue as we see it is whether a trial judge has discretion during the trial of the criminal case to order a defendant to produce relevant portions of a defense investigator's report.
And specifically, we are referring to the time after the defendant has offered that investigator as a witness in his own behalf and after the direct testimony of that investigator who was called fro the specific purpose of impeaching government witnesses who already have testified.
Justice William H. Rehnquist: Why do you refer to it as ordering a defendant to do it Mr. Freidman?
Couldn't that order be directed to the witness himself?
Mr. Paul L. Freidman: Well, it really is directed to the witness because at his report.
He had a copy of that report more than likely although the record is not clear on this defense counsel clearly had a copy of the report at the time of trial but it is a report that was prepared by the investigator and it's his report.
So, it really is an order to the defense counsel or the defense witness to turnover that report.
Justice Thurgood Marshall: Is this the Southern District of California --
Mr. Paul L. Freidman: This is the Central District of California --
Justice Thurgood Marshall: You must --
Mr. Paul L. Freidman: The Central District of California, the trial was in Los Angeles.
Justice Thurgood Marshall: One that they is trying to -- they give that stuff ahead of time, it could file at McCray's office.
Mr. Paul L. Freidman: Apparently, that does not occur in the Central District of California as a matter of practice.
Chief Justice Warren E. Burger: At least in this particular court.
Mr. Paul L. Freidman: That's correct.
Chief Justice Warren E. Burger: That's --
Justice Potter Stewart: He never looks in the clerk's office, maybe it's there all the time.
Mr. Paul L. Freidman: Judging from the transcript in this case, I sincerely doubt that. Our position basically is that cases like Jencks, and Gordon, and Goldman of this Court really support the view that a trial judge has that kind of a discretion.
In the absence any countervailing legislation or rule and we say that there is none.
Justice Potter Stewart: Is this sort of a reverse Jencks case?
Mr. Paul L. Freidman: It is sort of a reverse Jencks case, yes.
And if you look back at Jencks, I think that anyone would have to agree that Jencks -- the Jencks case are began on a premise that judges have this kind of discretion and that the only purpose of Congress in passing the Jencks Act was to limit that discretion which existed.
It addressed itself only to the problem of requiring the Government to turnover certain things to the defense because it was concern with fishing expeditions, national security things, that sort of interest to the Government but do not address the problem of this case at all.
Congress could address it but it hasn't and we submit that the Court hasn't addressed it in Rule 16 either because Rule 16 is a pretrial rule and it does not really govern once the trial begins.
The facts of this case very briefly indicate why it was necessary here or appropriate here for a judge to exercise his discretion, respondent on three others who are charged with federal bank robbery.
Three of the robbers were captured on film during the bank robbery, one who was later identified as respondent in the trial was standing under the surveillance camera and he was the only one not captured on the film.
The Government's evidence against him came from two eyewitnesses; a bank teller and a salesman visiting the bank.
It was those two eyewitnesses that the defense tried to impeach through the investigator.
First, they cross-examined the eyewitnesses asking one whether or not he had told the investigator that he'd only seen the back of the robber under the camera.
The witness denied having said.
The second witness was asked whether or not he had told the investigator that to him all blacks look-alike.
The witness denied having said it.
And at that point, the prosecutor requested that he'd be able to see the relevant portions of the report.
Respondent's counsel denied refuse to produce them.
The Court indicated it's inclination to order them produced but waited for further oral argument.
And then later said that he would order them produced but only after the investigator testified and only the relevant portions of the report and they offer their services and camera to review the report and excise extraneous matters.
Justice Potter Stewart: I misses that.
What point do they lower court make this ruling?
Mr. Paul L. Freidman: The Court made the ruling prior to the defense investigator being called to the stand and he said that, he would require production of relevant portions after the direct testimony of the investigator.
Now, earlier --
Justice Potter Stewart: -- anybody but he know that time that the investigator was going to testify?
Mr. Paul L. Freidman: The defense had called them to the stand.
Chronologically, what happened was when the defense of the prosecution witness Hoffman and Van Gamoran and testified.
He was asked whether you'd had an interview with the investigator.
He said he couldn't recall.
He was showing a piece of paper purporting to be a part of the investigator's report.
Justice Potter Stewart: Is on cross-examination.
Mr. Paul L. Freidman: Cross-examination --
Justice Potter Stewart: Of that prosecution witness --
Mr. Paul L. Freidman: By a defense counsel.
Justice Potter Stewart: Right.
Mr. Paul L. Freidman: That's right.
He said the piece of paper refresh his recollection but that he did not recall saying that he'd only seen the back of the man.
Justice Potter Stewart: All right.
Mr. Paul L. Freidman: And in fact he did not see only the back of the man.
The second Government witness was cross-examined about whether it had the interview.
He was -- his recollection did not have to be refreshed because he remembered the interview.
He denied having made the statement, to him, all blacks look-alike.
There was then argument as to whether or not the prosecutor would be able to see the relevant portion of the report then on air before his redirect of the Government witness Hoffman.
That was never produced.
The Government proceeded with its direct examination.
There was then subsequent argument at which the Court ruled that if the investigator was to be called for this purpose that the relevant portions of the report would have to be turned-over after his direct testimony.
Defense counsel, respondent's counsel, apparently then conferred with other members of the public defenders service and they concluded that there was a Fifth Amendment privilege and other reasons Sixth Amendment privilege not to turn this over.
Justice Potter Stewart: Before that conferral was other defense colleagues is the defense counsel had agreed to this, hadn't he?
Mr. Paul L. Freidman: He had, (voice overlap)he updated some mild protest but he had aptly asked yes.
And so then, the defense investigator was called to the stand and I believe it was the prosecutor so that before we proceed with that --
Justice Potter Stewart: Now, this is now the defense putting on its case.
Mr. Paul L. Freidman: The defense putting on its case.
The Government had rested, there been motions for judgment of acquittal by all defense counsel they had been denied.
Defense had put on a number of witnesses prior to calling the investigator and then called the investigator.
The prosecutor as to approach the bench and said, “I would like a proffer as to what he's going to testify about.”
Defense counsel, Mr. Allis here, made the proffer and his proffer was that he would testify about some photographs taken in the bank apparently relating to lighting conditions and so on.
And also, he would impeach the witness Hoffman and I believe also the witness Hoffman, and I believe also the witness Van Gamoran.
The Court said, “Well, my earlier ruling still stands have you turned this over?”
And it was then subsequent argument which Mr. Allis indicated he would not turn it over, he felt that whether these privileges involve and the Court then made clear.
Again, the limited nature of his ruling was not the entire report but only the relevant parts of it relating to statements that may have been made by Hoffman and Van Gamoran's Bond and that irrelevant --
Justice Potter Stewart: With the investigator --
Mr. Paul L. Freidman: To the investigator --
Justice Potter Stewart: -- to get the investigator's report.
Mr. Paul L. Freidman: That's right.
Justice William O. Douglas: But well that seems, if we can go limited to the direct testimony whether it was to be in the investigator.
Mr. Paul L. Freidman: Limited to the direct testimony of the investigator as it relate it to his interviews with those witnesses and that if --
Justice William J. Brennan: That's the same in Jencks Act limitation.
Mr. Paul L. Freidman: I think it's the same exact Jencks limitation, yes.
Justice Byron R. White: Was he about to use those reports?
Mr. Paul L. Freidman: Was -- I'm sorry, was who about to use the reports?
Justice Byron R. White: The defense investigator who was going to impeach the Government witnesses.
Mr. Paul L. Freidman: It is not clear from the record whether he was going to use the reports to refresh his recollection while on the stand and it was never developed because this subject matter was not going into.
Justice Byron R. White: Won't -- if it weren't shown under the new rules of evidence when they go into affect, if that weren't shown, you wouldn't get these?
Mr. Paul L. Freidman: Well, I'm not sure that that's entirely true and I think that's it.
Justice Byron R. White: I'll put it this way, there's a problem -- then you'd have a problem on the rules would you.
Mr. Paul L. Freidman: I think we have a bigger problem in this case, yes.
Justice Byron R. White: -- and whether you can solve or not is another matter.
Mr. Paul L. Freidman: I'll attempt to solve it.
Justice Byron R. White: Well, one of these days, you'll have to.
Mr. Paul L. Freidman: But, I think that the rules are obviously were not in affect.
Justice Byron R. White: Were not affect till July?
Mr. Paul L. Freidman: And are not in affect until July 1st of this year.
Justice William H. Rehnquist: Did the District Court's restriction on Bond's testimony permit him to testify as to the lighting in the bank without showing the report?
Mr. Paul L. Freidman: Yes, and he did so testify.
Justice Potter Stewart: Well, we're getting a little ahead of the story.
Mr. Paul L. Freidman: Alright, at the bench, they were discussing the matter the judge reiterated his ruling, made clear that it was limited to only the relevant portions.
And again made clear that irrelevancies could be excise, he offered his services to in camera to help in the excision of these things and defense counsel nevertheless refuse to turnover any portion of the reports standing on his privileges.
Justice Potter Stewart: Then or ever.
I mean that was his view.
Mr. Paul L. Freidman: Yes, he would not turn --
Justice Potter Stewart: He is then or after the investigator.
Mr. Paul L. Freidman: That's correct and the Court -- at some point, there were some discussion about why I let them testify and then striking the Courts and well, I think we can rule on this before the witness and I want to know your intentions, you're an officer of the Court.
And I'm going to preclude this testimony if you say that you will not turn it over and that's -- that was the ruling of the Court.
He testified this to other matters, other witnesses testified and the jury returns the verdict of guilty.
The Court of Appeals reversed in a two-to-one decision.
And they found that the Trial Court's order was a violation of the Fifth Amendment privilege and also a violation of Rule 16 (c)'s limitation and discovery to the prosecutor by the defense.
Justice Potter Stewart: The trial -- in the Trial Court, this material was turned over --
Mr. Paul L. Freidman: To the Trial Court, the material in the defense investigator's report --
Justice Potter Stewart: Right.
Mr. Paul L. Freidman: Was -- what was turned over to the Trial Court, I believe, under seal so I've never seen it.
Justice Potter Stewart: Right.
Mr. Paul L. Freidman: Is a proffer as to what Bond would testify to.
As a supplement to that proffer, counsel made an oral representation in Court.
That in fact the investigator had taken notes and had prepare to report from those notes of his interviews with the two witnesses and it was that that counsel on the Court had been discussing when they had made reference to be investigator's report.
He said at one point, there in fact are two reports and I'm not sure exactly what is meant by that whether he was at one point referring to the notes and in another point referring to the report.
Justice Potter Stewart: He most as I read the story a little bit after the investigator did testified at any?
Mr. Paul L. Freidman: The investigator testified as to other matters.
Justice Potter Stewart: But not as to these two witnesses.
Mr. Paul L. Freidman: But not as to these two witnesses.
Justice Potter Stewart: And why not?
Mr. Paul L. Freidman: Because the Court ruled that if he or counsel refused to comply with the order to turnover the report that he would be precluded --
Justice Potter Stewart: From testifying --
Mr. Paul L. Freidman: -- in testifying in the subject matter.
Justice Potter Stewart: On that subject.
Mr. Paul L. Freidman: And so --
Justice Byron R. White: More than Jencks.
Mr. Paul L. Freidman: No, I think that under Jencks --
Justice Byron R. White: He didn't get -- under Jencks, you don't get it until a fellow has testified.
Justice Potter Stewart: Yes.
Mr. Paul L. Freidman: Well, the Court's or the Court ruled prior to his taking the stand but he made clear that his order would only apply after the direct testimony said, “After the direct testimony, you must turnover these portions of the report but tell me now whether you're going to comply with that order and if you're not going to comply rather than what I'm testifying then striking I will do the functional equivalent which is to prevent him from going in to the subject matter at all.”
And I think the same thing would happen under Jencks if the trial judge was farsighted enough to deal with the problem before.
Chief Justice Warren E. Burger: If it's just anticipating the problem, wasn't he?
Mr. Paul L. Freidman: Exactly.
His ruling was made before the witness was -- who took the stand but it was to apply only after the direct testimony of that witness.
Justice Byron R. White: But the other way that matters in having to testify in order to turn it over.
Mr. Paul L. Freidman: That's right, but the --
Justice William J. Brennan: Is that the ordinary Jencks procedure?
Justice Potter Stewart: Yes.
Mr. Paul L. Freidman: That's the ordinary Jencks procedure.
Justice William J. Brennan: I know that and I gather practices growing upturning over so according to Jencks statements --
Justice Potter Stewart: Well in advance.
Justice William J. Brennan: -- to defense counsel before the trial begins.
Mr. Paul L. Freidman: Well, other than that?
Justice William J. Brennan: But under the statute itself, there not obligation to turn anything or run in the part of the government.
Mr. Paul L. Freidman: That's right.
Justice William J. Brennan: Until the witnesses completed his direct testimony, is that right?
Mr. Paul L. Freidman: And by the trial judges order, there was no obligation to turn it over until after he completed his direct testimony.
Justice William J. Brennan: Well, what I'm wondering is if you had a Jencks Act situation.
A judge couldn't say I'll let you testify anything you promise with the Government.
Now, it tells me not going to tend it over, wouldn't he?
Mr. Paul L. Freidman: I'm not sure if that's true Mr. Justice Brennan because it seems to me that if a prosecutor were to make that kind of a statement in advance, all the witness being called it all for whatever reason, it just doesn't happen that much.
The judge could --
Justice William J. Brennan: I know it doesn't happen, I'm just wondering whether the judge would have that authority.
The prosecutor did say I'm not going to do --
Mr. Paul L. Freidman: I don't think he would be required to let him testify and then strike it.
I just --
Justice William J. Brennan: Certainly, out of the Jencks opinion what would have happened as you'd have to dismiss indictment?
Mr. Paul L. Freidman: That's right.
I mean, there are additional sanctions that can be enforced against the Government that cannot be enforced against the defense.
It's certainly a much lesser sanction than dismissing the indictment or something --
Justice William J. Brennan: At some point, would you tell me why we should decide this case when 613 (a) is going to become effective on July 1?
Mr. Paul L. Freidman: Well, other than the fact that 613 (a) didn't govern but it may govern on a retrial.
It is our position that 613 (a) does not deal with this precise problem and --
Justice William J. Brennan: But this will survive 613 (a), will it?
Mr. Paul L. Freidman: I think it will survive 613 (a) because if you look at the history --
Justice William J. Brennan: Because otherwise I don't see that this just be a decision from this case we wouldn't be settling in a major question of law.
Mr. Paul L. Freidman: Well, I don't think that refreshing recollection has to be a precondition to the trial judge exercising his discretion in this kind of a circumstance.
Justice William J. Brennan: Well, that will be an issue under 613 (a) does it?
Mr. Paul L. Freidman: Yes, it will be because 613 as it was originally came from the Court required did not provide judges' discretion but said whether refreshing was done while testifying or prior testifying would be turned over.
Congress modified the second one before testifying but they did not deal with what we contend as the third situation which is this situation here.
Justice William H. Rehnquist: Well, do you see the scope of the trial judges order here requiring a turnover as being necessarily tantamount to allowing the prosecution to offer this in our inhabit admitted in evidence?
Mr. Paul L. Freidman: Well, I don't think so.
I think it can be use for purposes of cross-examination and then the normal rules of evidence would apply.
If it turns out to be a prior consistent statement of Hoffman and Van Gamoran, the question then would be whether you could introduce it to buttress their testimony but turns out to be a prior consistent statement of the investigator that the same question would result.
And maybe after July 1, 1975 relate a one D would answer that question.
Justice William H. Rehnquist: But I would think it is not precisely the same for the Trial Court to say, “you must make available to the prosecutor this document.”
And to say, “I order this document and admit it in evidences exhibit so on and so.”
Mr. Paul L. Freidman: The two questions are clearly distinguished but I think Jencks said, that I think Claremore said, I think Campbell said it, that production for the purposes of cross-examination.
The prerequisites for that are only to show that it's relevant and relates to the direct testimony can be use for all sorts of purposes.
Omissions from the report might be relevant and a different order presentation and the report might be relevant whether it's a statement consistent or inconsistent that would be admissible and evidence is a question that the judge would rule on somewhere down the road and that has nothing directly to do with it produce ability, and with its usefulness, and the issue of testing credibility and getting up the truth which is what we think this case really is about.
And our basic position is that under prior decisions of this Court, the same kinds of principles that apply to the prosecutor when he has a prior statement and he calls a witness who has made that prior statement or prior report.
I would apply to the defense when they call a witness for the purpose of impeaching government witnesses who may have interviewed, and whom they've taken statements from.
And the only --
Justice Harry A. Blackmun: This is the statement allegedly made to an investigator suppose Mr. Allis himself been his own investigator.
Mr. Paul L. Freidman: Mr. Nobles the defendant?
Justice Harry A. Blackmun: The attorney.
Mr. Paul L. Freidman: Or the attorney.
Justice Harry A. Blackmun: And he made a note which are case be any different.
Mr. Paul L. Freidman: I don't think so.
We -- and in fact the state cases which we cite Damon, Saunders and Montague were cases where attorneys acted as their own investigators.
We're not talking about attorney-client privilege.
The privilege rule that to have been proposed which would have expanded attorney-client privilege to also encompass representatives of the attorney was not passed by Congress and the common law of privileges prevail.
And therefore, even the Court of Appeals on this said case that the attorney-client privilege would not protect this material.
Secondly, we submit it is not confidential in the sense that communications covered by the attorney-client privilege have protection, certainly not.
Justice William H. Rehnquist: -- protect it from discovery in the civil action by Hickman against Taylor, wasn't it?
Mr. Paul L. Freidman: The statements would be protected pretrial from discover in a civil action.
I doubt that they would be protected in trial from production if the person who had made the statement of the report had been called as a witness.
If in a civil action someone is hired as a representative on the attorney to do some investigation or to do statistical study or whatever else.
This maybe governed by the work product rule in Hickman, maybe govern by the protection for statements in Hickman pretrial but if he's called as a witness to testify about those very matters.
Justice William H. Rehnquist: But I mean by Justice Blackmun's hypothesis that where the lawyer himself id the interview and then it's clearly protected from pretrial case.
Mr. Paul L. Freidman: From pretrial discovery, yes under Hickman --
Justice Thurgood Marshall: And how about in this verdict case if a man walks in off the street and tells a lawyer that I heard so on and so say this not took some notes on it, and he calls him as a witness, same rule?
Mr. Paul L. Freidman: If the witness himself took the notes of what the other person had said.
Justice Thurgood Marshall: And it comes in that the lawyer didn't know a thing about it.
Mr. Paul L. Freidman: But the lawyer chooses to call him as a witness.
Justice Thurgood Marshall: That's right.
Mr. Paul L. Freidman: Well --
Justice Thurgood Marshall: Use your phrase seeking the truth.
Mr. Paul L. Freidman: Well, isn't that what the criminal trial is all about.
Justice Thurgood Marshall: I say, assuming that.
Mr. Paul L. Freidman: And --
Justice Thurgood Marshall: Well, with the rule applied, it is the man to walk in out of the street?
Mr. Paul L. Freidman: I think if they had taken written notes and testified about the content of those notes, substance of those notes that the prosecutor had to be able to see them for purposes of cross-examination.
Justice Thurgood Marshall: And now the lawyer will walk into the courtroom and volunteered himself as a witness.
Mr. Paul L. Freidman: And the defense attorney?
Justice Thurgood Marshall: No, and the judge called him as a witness.
Mr. Paul L. Freidman: If he's the court's witness, then perhaps both counsel entitled to see the notes.
Justice Thurgood Marshall: What's you're doing if you try to get this case reverse so you can put the new rule on and then never to do --
Mr. Paul L. Freidman: No, I mean the purpose whether the new rule applies or not.
We think the decisions of this Court in cases like Jencks and Gordon, so the judges have discretion.
We're not asking for a rule that says that judges must order the stuff turned over in every single case.
What we're talking about is whether in the circumstances of a particular case and these circumstances pointed it up so well where a man is called for the very purpose of impeaching the government's key witnesses which is perfectly legitimate obviously and yet says I've got something here which would help you to impeach me.
He can't be impeached.
Justice Byron R. White: Alright.
Are you concentrating on -- apparently you're saying it to be just because they were going to put the defense investigator on that who were entitled to have his notes of the -- of his interviews with the government witnesses.
Mr. Paul L. Freidman: That's right.
Justice Byron R. White: Did you object to defense cross-examination of the defense witnesses at that time about their prior statements without the defense giving you a copy of any notes they made of their statement?
Mr. Paul L. Freidman: You mean of a defense cross-examination of the Government.
Justice Byron R. White: Yes.
Mr. Paul L. Freidman: There was a request by the prosecutor at that time for the notes.
Justice Byron R. White: Wasn't there a rule -- a common rule of evidence that if you're going to cross-examine a witness about a prior statement of his especially took were written that you're supposed to show it to him?
Mr. Paul L. Freidman: We thank him and we make this argument in our brief too.
Although, it's not necessary for decision in this because of the way it comes up that under Rule 613 (a) of the new federal rules that end.
We would have really then entitled to those statements earlier.
Justice Byron R. White: Well, when the Government witnesses were being cross-examined, did you ask for them now?
Mr. Paul L. Freidman: In the case of Van Gamoran, the prosecutor made the request that the witness will be showing the statement and that he too the prosecutor be showing it.
Justice Byron R. White: Well --
Mr. Paul L. Freidman: That was done.
Justice Byron R. White: If there are retrial and the rules were in a effect and they apply, let's assume they apply, you would demand these statements I've taken under 613 at the time of the cross-examination.
Mr. Paul L. Freidman: I would think so, yes.
Justice Byron R. White: But if you're concentrating -- if you were just concentrating on getting the documents because the defense investigator is go on the stand, then you'd face with Rule 612.
Mr. Paul L. Freidman: That's right, which creates more problems I agree and does Rule 613.
So, it maybe that the prosecutor would be entitled on a retrial for these documents early or not but we still think that that the --
Justice William J. Brennan: Well, I know what you'd just said Mr. Freidman.
I really have trouble saying what anyone gains by our side in this case?
Mr. Paul L. Freidman: Well, for one thing, the respondent makes a whole slew of constitutional arguments that would stand in the way of the common law, Jencks case type doctrine that we're talking about if he's right.
And we'll also stand in the way of the new federal --
Justice William J. Brennan: The Jencks case was not a constitutional decision.
Mr. Paul L. Freidman: That's right and my point is that we -- our position is that the same principles of Jencks apply unless there's some constitutional privilege that stands in the way because the government is different from --
Justice William J. Brennan: -- distinguishing the Government.
Mr. Paul L. Freidman: Right.
And the same concept applies in terms of the federal rules of evidence.
We can be completely right and what the federal rules of evidence mean.
And yes, if there's a constitutional impediment to them working in favor of the Government.
So, I think that the case is important even if the evidentiary and procedural questions are somewhat murky because of the transitional period we're in, to deal with some of his constitutional claims so that we know in this case on retrial if there'd be a retrial and in the future if their constitutional impediments to the Government getting this kind of material in this kind of situation.
Justice Potter Stewart: So far as the Court of Appeals judgment went there, there will be a retrial.
Mr. Paul L. Freidman: That's right.
So, one way or the other, there will be one.
We would ask that the opinion of the Court of appeals be reverse.
We think the constitutional claims are without merit but because there are so many of them that we think are without merit.
I'll defer to my opponent at this point reserved the rest of my time for rebuttal.
Chief Justice Warren E. Burger: Mr. Allis.
Before you'll get started, let me put one question to you in the dissenting opinion of Judge Kilkenny in the Ninth Circuit.
He made the statement we can assume that appellant's counsel was not playing games and that the memorandum that is the notes that were taken probably made no reference to the impeachment questions propounded to the witness' compliment.
Otherwise, there would be no target for reason for the refusal to produce them now, that's the end of the quote.
Can you suggest any hypothesis why if the statement was in fact impliedly represented to the Court that it would not help the defendant to have it made available?
Argument of Nicholas R. Allis
Mr. Nicholas R. Allis: Yes, Your Honor, I'd like to if I may --
Chief Justice Warren E. Burger: And then you can deal with that anytime you wanted in the order of your argument.
If you want me to take it up right now if you don't want to --
Mr. Nicholas R. Allis: Well, I appreciate that if I could reserve it for a little bit later.
Chief Justice Warren E. Burger: Fine.
Mr. Nicholas R. Allis: I would like to say it this time though Your Honor that the statement of Van Gamoran of the statement of Hoffman which was the written report of the investigator were place under seal for the Court of Appeals.
The statement of Van Gamoran was defendants exhibit A and was before the Court marked as an exhibit at the time that he testified.
I made that known to the Court of Appeals in my brief but apparently the descending judge did not look at those statements.
Chief Justice Warren E. Burger: Do we know that any of the judges did if they were under seal from the District Court?
Mr. Nicholas R. Allis: I do not know sir.
I'd ask the District Court at the end of trial to place some under seal for the Court of Appeals, last week I check and they're still in the safe in Los Angeles.
It fits it all pertinent; I'll do my best to see that they get here.
Justice Potter Stewart: The statements you mean the investigator, reports are all oral statements to him?
Mr. Nicholas R. Allis: That's correct.
Justice Potter Stewart: Is that what in fact it is?
Mr. Nicholas R. Allis: Yes.
Justice William H. Rehnquist: Did this panel set in that the panel I'm sure it's set in San Francisco or Los Angeles.
Mr. Nicholas R. Allis: Los Angeles.
It's in the safe in Los Angeles sir.
I was the trial counsel in this case, before the trial, I sent out our investigator John Bond to interview Government witnesses.
It turned out at the trial that the only evidence against respondent Robert Lee Nobles was a testimony of two eyewitnesses then Gamoran and Hoffman.
The Court of Appeals itself recognized that that eyewitness testimony was far less impressive than the eyewitness testimony against the other two defendants.
There was a lot of other evidence against the other two defendants as well and during deliberations, the jury had the entire testimony of the eyewitness Hoffman read back to it so that the jury was also had problems with the eyewitness testimony.
But the defendant was not permitted to put on his most compelling evidence and that was the evidence that John Bond would have testified to that one of the eyewitnesses had old them that all blacks look alike prior to trial and the other had told them that the he'd also seen the robber from behind.
Justice Potter Stewart: -- the facts -- are both of those versions we're suggested through cross-examination of course, aren't they?
Mr. Nicholas R. Allis: Yes, sir.
Justice Potter Stewart: -- of the two prosecution witnesses in the form of, didn't you tell investigator that?
Mr. Nicholas R. Allis: Yes, they were Mr. Justice Stewart.
That testimony of John Bond would've completely destroyed the credibility of these two eyewitnesses.
The damage to the defendant was exacerbated beyond repair by the comments of the prosecutor in closing argument.
He said, although, he well knew that the -- that John Bond did not testify because of illegal disagreement as to the privilege status of the reports.
Nevertheless, he told the jury that the reason behind had not testified was because the witnesses had never told them those things and that defense counsel is merely trying to inject the racial element into the trial.
The preclusion sanction ordered by the Trial Court judging these circumstances Your Honors, is much too harsh.
There was no statute or rule which could've forewarned defense counsel or defendant that he would have to turnover these reports.
This isn't a case like for example such as Williams where you have a statute which may include with it, a preclusion sanction, the possibility of such a sanction.
This is virtually unheard of procedure by a Trial Court judge who punished the defendant for his good faith refusal to obey the order by precluding the testimony of the most important witness for the defendant.
Justice Lewis F. Powell: May I ask this question I'm sure I don't understand the postural case but if the statements in the possession of your witness corroborated his testimony, why did you object to that being presented to the jury?
Mr. Nicholas R. Allis: Your Honor, I objected to it being presented to the jury because in my belief at that time, it undercut two of the most fundamental interest in favor of the defendant in our criminal justice system.
I'd like to perhaps discuss those just for a minute and with reference to this case.
Chief Justice Warren E. Burger: Well, were you representing the defendants generally or representing this defendant?
Mr. Nicholas R. Allis: I --
Chief Justice Warren E. Burger: Where was your primary obligation?
Mr. Nicholas R. Allis: It was with this defendant Your Honor and this case presents the exact problem, it seems to me --
Chief Justice Warren E. Burger: Well, if that suggested by my earlier question and now by Justice Powell's question, if the representation is made by inference or contained them and report, why wouldn't that help your client?
Mr. Nicholas R. Allis: The exact words would've helped the client because the exact words were in the reports as those reports in the safe now show.
But what the Trial Court judge ordered in petitioner's view point and I think it's the reasonable interpretation, was that all relevant material be turned over.
Now, once all relevant material in the report is order turned over there becomes the problem of what is relevant.
This test -- if both of the statements of these eyewitnesses had to do with the quality of the investigation without referring to this specific case because we have all along contended that the information is confidential, may I suggest a couple of hypothetical.
Supposing, the one witness said, “I only saw the robber from the back,” but he also told the investigator at the line up, “I wasn't sure it was him, until I heard his voice and then I was sure.”
Now arguably, that statement about hearing the voice is relevant to the quality of the identification of the eyewitness.
It's our position that facts such as that should not be made available to the Government.
There's no duty on the part of the defendant to make that known to the Government.
Chief Justice Warren E. Burger: Did the judge think he would exercise all the matter that was not relevant to the precise issue?
Mr. Nicholas R. Allis: He did sir.
Chief Justice Warren E. Burger: Could intact to the subject of excising and not open new to this problem?
Mr. Nicholas R. Allis: Yes, sir.
If the judge decided that that was not specifically relevant to the issue but --
Justice William J. Brennan: How could you decide that your hypothetical -- how could he decide other than then it was relevant?
Mr. Nicholas R. Allis: Sir, I think it's at least arguable and I'd certainly believe that a judge could decide if you suggest that it is relevant and that it should be turned over and that would violate the underlying principle of our system of justice in the accusatory system whereby the Government must bare the entire burden.
The Government has a duty and this is relevant to the Jencks Act it seems to me, not only to prove the defendant guilty but to make sure that he has any evidence that's material to his defense.
The Jencks Act is part of that duty as this Court's Decision in Brady versus Maryland but there's no reciprocal duty on the part of the defendant to help the Government prove guilty people guilty.
Justice Lewis F. Powell: Even when the defense opens up the subject on cross-examination?
Mr. Nicholas R. Allis: Well sir, Mr. Justice Powell, we were willing to have Bond cross-examined.
The only protest we had was that a report which was never going to be utilize by us, produced by us at the trial should be produce.
We contended that that was a basically an internal defense document, so that Bond was opened to complete cross-examination and moreover the Government could've called back and rebuttal the two eyewitnesses who had testified for them in direct.
Justice Lewis F. Powell: Was this report in Bond's handwriting or had it been typed by his typewriter?
Mr. Nicholas R. Allis: It had been type by a secretary later at subsequent to the interview.
We're not dealing with a statement that was written, signed or approved by the witnesses and that would be the situation Mr. Justice White I believe when this report would be -- have to shown into the witness.
This was a --
Justice Lewis F. Powell: Would your position here today be different if you would had in your possession statements signed by the prosecution witnesses that had been referred to in cross-examination?
Mr. Nicholas R. Allis: If -- yes -- if the statements --
Justice Lewis F. Powell: It would be different?
Mr. Nicholas R. Allis: Yes, it would because --
Justice Lewis F. Powell: You would agree that those statements could be demanded by the Trial Court?
Mr. Nicholas R. Allis: Yes, sir.
Justice Lewis F. Powell: And tell me again why draw to this -- the distinction between our statements signed by a witness and the recordation of the witness statement by your investigator.
Mr. Nicholas R. Allis: Your Honor, it's based on the common law rules of evidence.
The rule in a Queens's case which is followed by a number of Courts as I understand it, I would require statements signed by a witness or approve by the witness or written by the witness to be shown to him that is sensible, and that the witness has actually seen the statement, and agreed that reflexes contemporaneous attempt -- remarks but this was a report written by somebody else not to be produce to trial and written subsequent to the actual interview.
Justice Lewis F. Powell: This is what product?
The lawyer's what product?
Mr. Nicholas R. Allis: Yes, Your Honor.
We make three arguments with regard to privilege.
We think that any document like this is privileged under adversary system and its interest in effective assistance of counsel.
It's always been held that confidentiality in the preparation of a defense case is essential to the further ends of that.
We have two privilege arguments that come under that confidentiality heading.
The one with Sixth Amendment one were product.
Our third privilege argument is based on the Fifth Amendment but aside from the privilege, we think this was simply a matter of the Court of Appeals exercise in its supervisory jurisdiction to correct a mistake of the trial Court, in interpreting those rules of evidence which governed disclosure of documents at trial.
Justice William H. Rehnquist: The rule of the Queens case is a rule governing cross-examination, isn't it?
Mr. Nicholas R. Allis: Yes, yes, it is Mr. Justice Rehnquist.
Justice William H. Rehnquist: And it's followed some places and not others?
Mr. Nicholas R. Allis: That's correct.
Justice Potter Stewart: You are talking about witnesses in terms of the two prosecution witnesses focusing upon Bond as a witness.
This statement certainly had been prepared by him and then had been therefore adapted and authorize by any eventhough it might have been typed up by his stenographer, hasn't he?
Mr. Nicholas R. Allis: That's right.
But Bond was my witness and rule in the Queens case would not apply in a situation such as that.
Justice William H. Rehnquist: But you weren't required to produce that until the prosecution was going to examine it.
Justice Potter Stewart: Right.
Mr. Nicholas R. Allis: That's right.
Justice William H. Rehnquist: And the Court -- there it's a clear case of the Queens case rule.
Justice Potter Stewart: I think of the Bond now is the witness.
Mr. Nicholas R. Allis: No, sir.
I respectfully disagree the rule in the Queens case is specifically applicable when the direct examiner is examining an opposing parties' witness.
Chief Justice Warren E. Burger: Well what about --
Justice William H. Rehnquist: You're confused in terms.
What do you mean by a direct examiner?
Examining an opposing parties' witness?
Justice Potter Stewart: There is no such thing.
Justice William H. Rehnquist: There's direct examination and there's a --
Mr. Nicholas R. Allis: I beg your pardon.
I beg your pardon.
The rule in the Queens case would apply to me as the examiner of the Government's witness that is I would have to turnover statements of the Government witnesses --
Justice William H. Rehnquist: When you're going to cross-examine --
Mr. Nicholas R. Allis: -- when I'm cross-examining them but it would not apply to make me turnover to the Government statements in my position when my own witness has completed his testimony, the rule on the Queens case would apply to Bond insofar as any statements of Bond in the possession of the Government would have to be turned over to me during their cross-examination to him --
Justice William H. Rehnquist: Well, to him rather than you?
Mr. Nicholas R. Allis: To him, yes.
Chief Justice Warren E. Burger: Mr. Allis, so when --
Justice Potter Stewart: That's right.
Chief Justice Warren E. Burger: When the Government undertook it had Mr. Bond testified and the Government would then be entitled cross-examine and you'll agree.
Mr. Nicholas R. Allis: Yes, sir.
Chief Justice Warren E. Burger: Could the Government ask him whether he had refreshed his recollection about the interview by reference to his notes that were made?
Mr. Nicholas R. Allis: Certainly.
Chief Justice Warren E. Burger: Well, isn't there quite an old established rule that notes used to refresh recollection of witness maybe examined by the opposing counsel?
Mr. Nicholas R. Allis: Yes, it is Mr. Chief Justice.
Chief Justice Warren E. Burger: Then, what's the problem here?
Mr. Nicholas R. Allis: There was no evidence in the record in the Court of Appeals specifically found this to support any contention that his recollection was refreshed.
Chief Justice Warren E. Burger: No, but you can't know that.
This man is a regular investigator for the public defenders' office, is he not?
Mr. Nicholas R. Allis: That's correct.
Chief Justice Warren E. Burger: He's inquiring and interviewing dozens of people in many, many cases I would assume, is that not so?
Mr. Nicholas R. Allis: That's true.
We've -- I'd like to make the copy actually.
Chief Justice Warren E. Burger: Just might the counter part of the investigator for the law enforcement agency.
Isn't that reasonable and wouldn't it be reasonable for it quite to assume that any careful lawyer would require his investigator to refresh his recollection from his own reports before appearing in the courtroom?
Mr. Nicholas R. Allis: Perhaps Your Honor, I don't think its necessarily true in all cases and if that if where you have the case of a very important trial and the witness is just been interviewed and because of some items and other parts of the report not relevant or not specifically connected with the statements he would testify to if the defense counsel didn't.
They wanted to make sure they wouldn't be turned over to the Government to provide it with information.
It might not have the investigator refresh his recollection with the report.
In any case, I don't think that that's an issue on this case because there's absolutely nothing in the record to support if any finding that he did refresh his recollection.
The Court of Appeals found --
Justice William J. Brennan: He wouldn't ask on cross-examination whether he had it?
Mr. Nicholas R. Allis: No, he was not Your Honor.
Our contention --
Justice William J. Brennan: -- at all?
Mr. Nicholas R. Allis: -- is that the rules of disclosure of documents that are in effect at the time of trial are compose of the common law rules of evidence, Rule 16 of the Federal Rules of Criminal Procedure, and the Jencks Act.
The Rule 16 (c) of the Federal Rules of Criminal Procedure sets aside in the last sentence a certain number of items of the defense which are immune from Government discovery.
This document falls within that last sentence in two different phrases of it.
One, it is a report of an age end of the defendant.
Secondly, it is a statement of a Government witness made to an age end of the defendant.
Now, the petitioner argues that Rule 16 is only applicable pretrial.
If one looks at Rule 16 (b), the preceding subsection and at its last sentence, one finds that that subsection carves out a certain number of items belonging to the Government which cannot be discovered by the defense.
But the last phrase is accepting so far as provided in the Jencks Act.
The Jencks Act only comes into effect at trial and therefore it's clear that the rule makers had in mind that Rule 16 should be applicable to trial as well as free trial.
Justice William H. Rehnquist: What if on cross-examination, you would ask the Government's witness whether they were aware of a bloody shirt that had been found in connection with this thing and their answer was “no”.
And then, your investigator sitting at counsel table waiting to be called as a witness simply pulls a bloody shirt out of his pocket and puts it in front upon the table in full view at the jury.
Is it your position that the District Court would have to find some justification, one of these rules of evidence in order to order that shirt at least brought before the Court for inspection to see what light it would shed on the trial?
Mr. Nicholas R. Allis: If the shirt were thrown on the table Your Honor, it would in effect be produce at the trial.
This is a situation where the report was never produced at the trial.
Am I directing myself to your question?
Justice William H. Rehnquist: Yes, you certainly are.
Is there no evidence then that either you in your clause of evidence suggested that there had been a report either by looking at it or otherwise?
Mr. Nicholas R. Allis: Your Honor in my cross-examination, I had the report or a copy of that part that I wanted to question the witness about so that I could make sure I was restating the exact words which she told John Bond but it never been referred too at all and it had never had been brought out before the jury that there was a report written, never shown to the jury, never introduced an evidence.
Now, a Trial Court judge has discretion when there is a rule to fill in the gaps to solve problems not considered by the rule makers or to interpret text in a manner which achieves statutory justice but as the Court of Appeals in the Wright case here in District of Columbia stated, this kind of a rule depending on one's perspective would expand or narrow specific rights and privileges granted by statute and rule.
Justice William H. Rehnquist: Of course, Judge Pratt's order in the Wright case was a good deal broader than the District Court's order here, wasn't it?
Mr. Nicholas R. Allis: Yes, it was.
In the sense that the entire report was ordered produced but it was not order to produce until the defense was in its case.
Our contention is that the basic principles of the Wright case do indeed apply that it was an investigator's report in that case order discovered.
Now, Rule 16 is compatible with the underlying principle of our accusatory system that the Government must bare the entire burden.
Any suggestion that the Government must have at least as good chances the defendant would too prevail would seem to violate the basic principle favoring the defendant in order to avoid conviction of the innocent.
The other underlying principle of our system which I referred too earlier which is involved in this case and would certainly influenced me in refusing to obey that Court's order, was the interest in confidentiality and I might add if I may that although under my view of the documents they might not have damaged in this specific instance perhaps on the rebuttal if that was necessary at a retrial, if there were a hung jury or a reverse verdict.
If there was a rule like this that had been made and followed during the trial, what could that mean in terms of my defendant and what would I and what I would have to turnover to laid on the trial concerning other witnesses, but that privilege of confidentiality this Court has recognized in the context of Hickman versus Taylor is essential in our system of justice.
Historically, lawyers have worked as officers of the Court to protect the interest of their clients.
Now the way that's done, this Court said in Hickman is with a certain degree of privacy.
This is --
Justice William H. Rehnquist: Hickman wouldn't protect the statement made to an investigating agent would it as oppose to the statement made to a lawyer and Mr. Justice Blackmun's hypothetical?
Mr. Nicholas R. Allis: This is the petitioner's viewpoint and it's true that Hickman did deal with the statement made to the attorney as oppose to an investigator.
Justice William H. Rehnquist: There's a lot of District Court law that says that statements for investigators are not protected under Hickman.
Mr. Nicholas R. Allis: Your Honor, we've cited down in our brief a number of cases which say that Hickman does apply so I think that although there are some would say it doesn't apply, there are that many that would say it does apply.
Justice Byron R. White: I think you're right on your Rule 16 argument, it's irrelevant.
Mr. Nicholas R. Allis: That's correct, that is absolutely correct Your Honor, I'm just moving now into our three privilege arguments.
We basically rest on the contention that this is merely an exercise of the Court of Appeals supervisory discretion to challenge a completely new rule fashioned by a District Court judge against the defendant in a criminal case.
The Court of Appeals in the Third Circuit in a unanimous embank decision in Hickman, later affirm by this Court recognized that that policy of confidentiality is open to the jives of the cenacle.
But we believe it sound; we know it is irrefutably established in the law although it is not capable of laboratory demonstration.
Only that principle of confidentiality will assure that a defense counsel can get all the facts both favorable and unfavorable which he's going to need to direct what's going to happen to case whether it should be dispose off before trial, whether it should go to trial, who should take the stand and what other witnesses should testify.
Your Honors, I'd like to suggest that --
Justice Thurgood Marshall: Mr. Allis, what would you do if the witness had the notes in his own pocket while he's up to testify?
Would that be a little different?
Mr. Nicholas R. Allis: It would be if he had refresh his recollection with the notes and conceivably it would be different if he in some way indicated although I would argue or not to the jury by waiving the report and somehow relying on the fact that he --
Justice Thurgood Marshall: -- you get your confidentiality award, he has in his pocket.
Mr. Nicholas R. Allis: The confidentiality Your Honors protects all internal documents of the defense made by the defense team.
This was a report by -- from one member the defense team the investigator to the attorney --
Justice Thurgood Marshall: No.
Mr. Nicholas R. Allis: -- from one --
Justice Thurgood Marshall: In my case, well he got some notes in his pocket.
I don't know what that --
Mr. Nicholas R. Allis: Mr. Justice Marshall, you're correct in suggesting that that would be different then in the sense that it certainly not a communication by one member of the defense team.
Justice Thurgood Marshall: But it wouldn't be necessarily a working product but it could be made it like you take position if it's in your hands it's obviously a working product.
Is that --?
Mr. Nicholas R. Allis: That's correct Mr. Justice Marshall.
Justice William H. Rehnquist: What if I'm representing a condemnee, and I employ an appraiser and he makes a report to me as the value of the property.
Can I say that he's one of the condemnee's team and therefore the report is not discoverable?
Mr. Nicholas R. Allis: I think that it certainly would be much more arguable that something like that could be produce for two reasons.
One, it's a scientific kind of a statement, and number two, it's not a criminal case.
I think that there are extra reasons in a criminal case which protect documents.
And thirdly --
Justice William H. Rehnquist: You can be wrong on Hickman and still prevail because this is a criminal case I did?
Mr. Nicholas R. Allis: Yes, Your Honor, we'd contend that.
In addition, an attorney for a criminal defendant is really a close agent really in extension of a defendant.
There is much closer --
Justice William H. Rehnquist: Well, don't you think an attorney for a condemnee is a pretty much of close agent too?
Mr. Nicholas R. Allis: Yes, sir.
Justice Lewis F. Powell: Mr. Allis, what do you normally do, I'm not talking about you personally but what the defense counsel normally do, when they send an investigator out.
Do they prefer to have him obtain statements from witnesses which is, what is customarily done in the civil practice, statements that are signed by witnesses and that can be use effectively to cross-examine witnesses or do you instruct your investigators never to take a statement that cost the statement might be used against them.
But the investigator should write up his own report which under your submission here today can never be use against them.
What is a normal practice?
Mr. Nicholas R. Allis: I would certainly prefer that that it's my normal practice to have the investigator get a written statement signed by the witness or approved by him then it's much more effective in examining the witness.
But I think that the problems of a defendant interviewing Government witness' is illustrated by this case.
Here the most important Government witness refused to meet with the investigator.
Finally, agreed to talk on the telephone and the report was made subsequent to that conversation on the telephone.
There's a great --
Justice Potter Stewart: One of these two witnesses?
Mr. Nicholas R. Allis: Hoffman.
Justice Potter Stewart: Hoffman.
Justice Lewis F. Powell: But in many cases, you have no idea whether the witness is going to be pro-government or pro-defense or just as neutral as he can be?
Mr. Nicholas R. Allis: Your Honor, bank teller after a bank robbery in my experience tends to be a prejudice against the defendant assuming that the Government's right in bringing the man in the trial.
Justice Potter Stewart: Prejudice against the robber but --
Mr. Nicholas R. Allis: I beg your pardon, prejudice against the robber.
Justice Potter Stewart: Whether or not he was --this defendant was one of the robbers, that was the whole issue here?
Mr. Nicholas R. Allis: That's correct.
What I'm saying is that Government witnesses too often assume that the Government is right and the man they have and therefore are immediately prejudice against that man.
That's been one of the problems in really seeing that our adversary system works.
In other words, the adversary system presupposes the erratically two equally strong sides.
That's not been true.
This Court in Wardius versus Oregon recognizes that the Government has special advantages in investigating the case, but beyond that, there's been a problem with effect to the systems of counsel for defendants.
The relationship of trust and confidence between a client and his defendant which the ABA has recognized as the cornerstone of the criminal justice system and something particularly hard to achieve in criminal as oppose to civil cases.
It's going to be affected we contend, once the defendant sees his counsel giving to the Government material conceivably favorable to the Government.
The literature as we plead of course with instances of defendants not trusting their public defenders thinking that those defendants are -- those counsels are just another arm of the Government.
So, the problem of trust and confidence is even greater because of that, excuse me.
The other problem with confidentiality is of course that outline of Hickman, the problem of the investigators not investigating this thoroughly, not -- perhaps not writing reports at all.
Justice Byron R. White: I suppose Bond is down the stand and you were asking the questions that would impeach the government witnesses by saying that they did tell him so and so.
And Bond had a piece of paper in his hand and he was looking at it.
Now, would you show that -- would you say you could show that you would have to show that to Government counsel?
Mr. Nicholas R. Allis: In my understanding Mr. Justice White, your question as assuming a situation where the report has been shown to the jury although not actually verdict that referred to --
Justice Byron R. White: Well, that's referred to the jury at all.
Your man is on the stand and you're asking him the questions that you think will impeach the Government witness.
Mr. Nicholas R. Allis: And he's looking at the report?
Justice Byron R. White: He's looking at a piece of paper.
Mr. Nicholas R. Allis: Certainly that report should be turned over to the Government because he's refreshing his recollection with it.
Justice Byron R. White: Well, what difference does that make in terms of your privileges?
Mr. Nicholas R. Allis: The -- my answer to that, Your Honor, is that the refreshing recollection doctrine has traditionally been a matter of common law trial practice and has therefore been an exception to any privilege argument.
Justice Byron R. White: So, you think --
Mr. Nicholas R. Allis: I think it's a question of waiver perhaps.
Justice Byron R. White: At least you think, Rule 16 doesn't forbid that?
Mr. Nicholas R. Allis: Absolutely not if there's a specific --
Justice Byron R. White: It's the same piece of paper that you say Rule 16 would protect you from producing it if you weren't looking at it, at the trial.
Mr. Nicholas R. Allis: Your Honor, our contention is that the common law rules of evidence of which the rule refreshing recollection is one are complimentary to Rule 16 if there's a rule of the common law evidence specifically making an exception to Rule 16 then it should be followed, but here there is no specific rule.
There is no rule of evidence which would either authorize -- which would authorize the Government to produce this under any circumstances -- would authorize the government to get hold of it under any circumstances.
Chief Justice Warren E. Burger: You have anything further Mr. Freidman?
Rebuttal of Paul L. Freidman
Mr. Paul L. Freidman: Just very briefly.
On the Queens case, the purpose of Rule 613 was to get rid of the Queens case and so that you don't have to show it to the witness you're cross-examining but Rule 613 applies equally to oral statements and the written statements so that whole argument we think is not the very sound.
Finally, I think the point that came through from Justice White's last question.
We call it waiver in our brief, if there's a constitutional involved whether it's a Sixth Amendment one or a work product privilege of some sort, which we discussed at length then in our replied brief or the Fifth Amendment one which we took and discussed in our initial brief.
Refreshing recollection makes no difference and the kind of discretion we're talking about in the trial judge in this case makes no difference.
If there is no constitutional right or whatever kinds of privileges may exist prior to calling that witness once the subject is opened up by defense counsel, himself.
The same principles of Brown versus United States raffle other cases of this Court may clear that they cannot open it up, only partway.
There's got to be cross-examination, all we're asking for is a decision of this Court which provides trial judges with the kind of discretion they need.
Justice Byron R. White: The pillars, have you -- you still insisting that it's quite all right to keep the witness off the stand entirely rather than letting him testify and then demanding that you get the statement and having the Court order them to produce it?
Mr. Paul L. Freidman: All I'm saying is that in a situation like this with the problem as flagged early enough and it can be discussed and there can be legal argument out, a judge does not have to let the witness testify and then strike the testimony if counsel refuses to turn it over.
If counsel is an officer of the Court says that he had made the decision already that he's not going to turn it over if that happens, I don't think the judge has to permit the direct testimony.
It doesn't come up very often just because of the normal course of things but it happened that way in this case and it doesn't make any difference in terms of our argument.
Chief Justice Warren E. Burger: Thank you gentlemen.
The case is submitted.