Jencks v. United States – Oral Argument – October 17, 1956 (Part 2)

Media for Jencks v. United States

Audio Transcription for Oral Argument – October 17, 1956 (Part 1) in Jencks v. United States

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Earl Warren:

You may proceed —

John T. McTernan:

Thank you.

Earl Warren:

— Mr. McTernan.

John T. McTernan:

My attention was called to the fact that I misspoke in indicating the time as of which these four incidents in the Matusow trial testimony occurred.

They were in July and August of 1950.

I would like to turn now to the situation of the hearing on the motion for a new trial.

There, it’s to be emphasized, we asked for a similar production to the Court of the same report as those into which our motion at the trial has been directed.

In these proceeding, Matusow was petitioner’s witness.

On his direct examination, he gave a complete and detailed recantation of his trial testimony.

Without going into the details here, let me simply refer to appendix 1 of our opening brief where, in parallel columns, the trial testimony and the hearing testimony are compared.

On cross-examination, the Government attacked the recantation as a recent fabrication corruptly induced, and the details of this many-sided and lengthy attack are set out in our opening brief, in rough outline at pages 18 to 20 and in some detail in Appendix 2.

Now, against this, Matusow, on redirect examination, said that his contemporaneous reports, these documents that are in issue here, to the FBI would show, as I said just before lunch, that he had no conversation with Jencks concerning the Communist Party or the Communist Party activities or party membership and that he, in his reports, never identified Jencks as a Communist.

Now, in this posture, I submit, the FBI statements of Matusow had obvious relevance for purposes of rehabilitation because these were records made as of a time before the motive to fabricate had been shown to exist.

These were the contemporaneous reports and there’s nothing in the evidence dealing with fabrication of a recantation which goes back earlier than 1954, 1955 which, of course, is three, four, or five years after the events occurred and the reports were written.

Now, the Government’s position here, as we apprehend it, is that Matusow’s trial testimony did not say that Jencks was a Communist and that Matusow’s testimony at the hearing concerning his reports did not show a contradiction between the reports and the trial testimony.

Now, I submit that this is simply not true.

It is not supported by the record.

I do not want to take the time for a detailed analysis of the evidence here.

We make it at pages 15 to 17 of our reply brief.

In short, let me say that if Matusow had been put on at the trial to testify to those four incidents, it was to show admissions on the part of petitioner that he is — was a member of the Communist Party as of that time.

Now, that could have been the only purpose of his testimony.

Therefore, when he said at the hearing that his reports did not identify Jencks as a Communist, that he — that they did not reflect conversations concerning the party or party activity or membership, there was a direct and complete contradiction with his trial testimony.

Earl Warren:

At the recantation hearing, did you ask for those reports again?

John T. McTernan:

Yes, Your Honor.

There was a — a separate request for those reports couched in precisely the same terms as at the trial.

We asked that the reports be produced to the trial judge, the trial judge to examine them for the purposes of determining their relevance and to release to us only those portions which were relevant, this time for purposes of rehabilitation rather than for purposes of impeachment because the posture was different.

Earl Warren:

The Government objected?

John T. McTernan:

The Government didn’t have time to object, Your Honor.The trial court said that there was no need to produce the secret files of the FBI.

That was the ruling.

Felix Frankfurter:

Mr. McTernan, this is just very keen which involved a problem — the problem in the administration of the criminal law in the federal court.

John T. McTernan:

Yes, Your Honor.

Felix Frankfurter:

And, therefore, I’d like to ask you whether you have in mind appropriate or necessary — appropriate or necessary, with a few regard to criminal justice, to safeguard against using the claim that their contradiction of witness — to what the witness had said to grand jury as a basis of obtaining, as a matter of cause, grand jury minutes.

I — I read — I must admit, I was brought up to entertain a very strong conviction about the desirability of the secrecy and non-disclosability of matters before a grand jury.

Now, so that — what — what are you to say about dealing with your situation in the context of your circumstances and not enabling — not having any ruling on it — to serve and to device but, practically, calling for a stop of witnesses who are important witnesses at the trial and who had also been witnesses before the grand jury?

What kind of safeguard do you suggest in regard to that problem, if I — if you — if you agree that it’s a problem?

John T. McTernan:

I agree that it’s a problem, Your Honor.

I think it’s a different problem from the one we have here and I think — I think what you’re raising is how do we decide this matter without trespassing on — on that field.

Felix Frankfurter:

That’s our job and not yours and, after all, that’s what counsel is for because and likely for —

John T. McTernan:

Yes.

Felix Frankfurter:

— I am dealing with a problem of which this is a manifestation.

John T. McTernan:

I think that it would be correct to say that the grand jury minutes are enclosed with a greater degree of privacy than the statements of a witness made to a prosecutor in the course of an investigation.

I would suggest, although I haven’t actually sought this problem out, that at least some indication that there had been a shift in the witnesses’ recollection of the fact should come out at the trial.

I recall that this issue was decided by the Second Circuit in the Remington case, I think it’s 191 F.2d, where, as I recall that case, the witness had testified at the trial that she had changed her mind about certain things at some stage in the — in the long process between the commission of the alleged crime and the time she testified.

And, it was on that basis that the court held that the grand jury minutes there should be turned over to the defense.

Felix Frankfurter:

I ought to say that my concern about the speakers of the grand jury proceeding is, perhaps, as much input that they had, at one time, not or little to do with him being in charge of the grand jury in federal court.

There’s as much concern, if anything, in the protection of innocent people.

If he provides there’s nothing to talk in the grand jury room that ought never to see the light of day, as innocent as an unborn baby.

And, if he could just talk, that if you want to open it up — not nearly tampering the cross-examination, then, ultimately, you’re not a mischief.

John T. McTernan:

Yes, and I think that’s another ground upon which grand jury minutes should be treated differently from the things we have here because, here, we’re dealing with statements related specifically to the events testified to or the facts testified to at the trial where the grand jury minutes may roam over many areas and touch upon many different people.

Felix Frankfurter:

Have you — have you adequately, from your point of view, stated to the Court what you deem to be a good showing or a statute showing that one could infer there probably was a conflict if he wasn’t there at the trial?

You indicated a minute ago that you — one would want some manifestation and not — not to say, “Your Honor, I’d like to get the minutes to maybe show this fellow testified to this.” You said a minute ago that you thought, in this case, that the case is — there’s sufficient protection and concern that I request, in that, you have a manifestation of probable contradiction.

You did not say something?

John T. McTernan:

Well, I said that with reference to the grand jury minutes, yes.

Felix Frankfurter:

Yes.

Now, what was there that should be only adequately to say that, what was their appeal on the record that showed the chance that you were wrong?

It’s not frivolous, is it, that you didn’t testify differently?

John T. McTernan:

Well, we had, here, no showing of specific — excuse me — contradiction between these reports, these contemporaneous reports which are not — which were not grand jury minutes, if you understand, and the witnesses’ trial testimony.

What we had here was a witness who was so crucial to the case and so suspect by the nature of his avocation and as to whom other discrepancies had been shown that we show the Court the need for searching cross-examination of this witness.

Further, we had an attempt to show the contradiction which has been frustrated by the witnesses’ claim that he couldn’t remember.

Now, Your Honor, what we ask for —

Felix Frankfurter:

I don’t get just what — I’m just believed what your finger are manifesting contradictions or indications of it, except that he was — before the fabrication.

You mean, in the case of informers, there ought to be a rule in the case of informant who has listed in all the documents?

John T. McTernan:

I think that should —

Felix Frankfurter:

I’m not challenging anything.

John T. McTernan:

Yes.

Felix Frankfurter:

I’d like to be enlightened.

John T. McTernan:

I understand.

I think that the fact that the witness is an informer is an extremely important element in indicating the need for bringing these reports out.

I think that the importance of the witness’ testimony to the prosecution is an extremely important element.

Here, the man Matusow testified to the crucial issues of the case, membership and affiliation.

Now, if he’d been some witness who testified to some essentially collateral matter, our approach here might be quite different.

We didn’t ask for reports on some of these —

Felix Frankfurter:

To prove his testimony wouldn’t become a wholly innocent, so-called non — nonprofessional witness, it wouldn’t have.

John T. McTernan:

A nonprofessional witness might very well testify to a crucial matter, yes, Your Honor.

Let may say that we did not ask that these reports be turned over directly to us.

We sought to safeguard for the Government a judicial examination.

What were the time relationship between your request for these — these reports at the trial and the — they knew a man, Matusow in the Dimock proceedings in New York?

John T. McTernan:

Well, they are almost simultaneous, Your Honor.

Matusow filed a recantation in our case and he filed a recantation in the Flynn Case before Judge Dimock within, I think, a week or 10 days of each other.

I’m not sure of the exact time.

Now, the proceedings before Judge Dimock occurred prior to the proceedings before Judge Thomason in our case on the —

The new trial.

John T. McTernan:

— on the motion for new trial.

And, as a matter of fact, we agreed to set our hearing at a time to suit the Government’s need for investigation, and their investigation of Matusow took place essentially through Judge Dimock’s proceedings and the grand jury proceedings that were going along simultaneously.

I — I concede, Mr. Justice Frankfurter, that our case, here, for the production of the record at the trial does not turn upon a showing of contradiction.

It turns upon these other policy considerations, to which I think we must add the fact that our effort to show a contradiction was frustrated.

And, given all of the considerations which indicate the policy that I have outlined here, I think that we should not be refused the — the motion that we asked for simply because this kind of witness especially says, “I have no recollection.”

Now, getting back to the thread of my argument dealing with the proceeding at the hearing on the motion for a new trial, I submit that in addition to the relevance of these documents for purposes of rehabilitation, they should have been looked at by the trial judge for another and important policy reason.

I have already indicated the reliability of these documents as contemporaneous reports.

On the motion for a new trial, the trial judge had a special responsibility to exhaust all efforts to find the truth.

John T. McTernan:

He has to protect the judgment of his court, if truth lies behind that judgment, and he has the responsibility to do justice if truce attacks that judgment.

Given this responsibility of the judge, plus, such facts which I select out of many in the record of the fact of recantation, the claim of corrupt inducement, many prior declarations by this witness which supported his recantation and many would support at his trial testimony, and they’re all laid out in some detail in Appendix 2 of our brief, plus, the crucial nature of Matusow’s testimony.

We submit that, in this kind of situation, it was essential to apply that this tedious regard principle which this Court annunciated in Communist Party against SACB.

It was, we submit, the responsibility of the Court on its motion, having — indeed having knowledge that these reports existed, to inspect them in order to make certain that the doing of justice be made manifest.

Now, we have involved in this point, if the Court please, one different kind of document, and I emphasize this because there were some confusion in the opinion of the court below as between this document and others that we have already dealt with.

This man, Matusow, went to an FBI agent named Crandall at a time intermediate his grand jury testimony and his trial testimony and said to him, says Matusow at the hearing, “I told him that I did not want to testify in the Jencks trial that was coming up.

I did not think my testimony was honest.”

Now, we asked for the production of that document in order to assist in the rehabilitation of Matusow.

I should say here that Matusow testified at the hearing that when he spoke to this Agent Crandall, he told Crandall what to write down and he said Crandall wrote it down and showed it to him for Matusow’s approval, so that I think that — and Matusow did approve it, so that I think that this document is on the level of a statement by Matusow comparable to the ones that we’ve been dealing with so far.

Now, in addition to the relevancy of this as rehabilitation, because, again, this came before the facts which the Government relies on to show motive for fabrication, there is an additional ground to why this document should have been produced.

Harold Burton:

Let me ask you, when he talked about his testimony not being honest, is it clear that he was referring to his grand jury testimony?

John T. McTernan:

Well, I —

Harold Burton:

Or, is it —

John T. McTernan:

I — I endeavored to — to quote the language, Your Honor.

I think it refers to the grand jury testimony, but there is a difference — a factual difference between the Government and us on that.

And, as near — as nearly as I can put it without looking at the record, he said, “I told Crandall I did not want to testify in the trial — Jencks trial coming up.

I did not think my testimony was honest, that — or that is the substance of what I said.”

Now, this statement, as it’s described in Matusow’s testimony, we submit, put the Government on notice that this man, Matusow, was a person of questionable reliability and this underlines, if the Court please, the importance of those contemporaneous reports.

If the contemporaneous reports contradicted the grand jury testimony, even by omission in the — in the matter that I described to the Chief Justice before lunch, the Government, I submit, should have been alerted by that fact of the possibility of perjury in the upcoming trial.

Now, we make no charge, if the Court please, that Government counsel is guilty of any kind of misconduct.

But, we do say, and we say it with great emphasis that there was enough shown to require the trial judge to obtain all of the facts and all of the evidence indicating what Matusow knew the truth to be and the Government’s awareness of his knowledge.

Now —

Hugo L. Black:

Was there refusal to turn that paper over?

John T. McTernan:

Yes, Your Honor, there was.

Hugo L. Black:

On what grounds?

John T. McTernan:

That the FBI records are confidential.

Hugo L. Black:

Was there any denial that such a statement had been made?

John T. McTernan:

The Government produced the witness Crandall who testified and denied that the conversation had taken place as Matusow testified at the hearing.

Crandall had an entirely different version of the conversation.

Hugo L. Black:

That was written down?

John T. McTernan:

Well, that —

Hugo L. Black:

You mean —

John T. McTernan:

— Matusow said —

Hugo L. Black:

You mean —

John T. McTernan:

— it was written.

Hugo L. Black:

— that the Government produced a witness to say that Matusow had not said this to them —

John T. McTernan:

Yes, Sir.

Hugo L. Black:

And written it down and then refused to turn over the paper?

John T. McTernan:

Well, I can’t — I can agree to everything Your Honor has said except Government refusal.

The Government had no opportunity at that hearing to refuse anything.

The — the trial court ruled before the Government expressed itself.

Hugo L. Black:

Well, did the Court decline to permit the introduction of a paper and, yet, permit the Government to introduce a witness to testify overly as to what was in the papers?

John T. McTernan:

If I may slightly change Your Honor’s statement, the Government — the Court permitted the Government witness, Crandall, to testify to his version of the conversation and refused our motion that the memorandum of the conference to be produced to the Court for its inspection to see whether it had relevance at the hearing.

Hugo L. Black:

Memorandum made by whom?

John T. McTernan:

It was — according to Matusow’s testimony, it was a memorandum made by the agent Crandall, virtually at Matusow’s dictation, and submitted to Matusow for approval.

Hugo L. Black:

Well, according to the — Mr. Crandall’s statement, who wrote this paper?

John T. McTernan:

Well, he said that he wrote it.

Hugo L. Black:

He wrote it.

Earl Warren:

Was —

John T. McTernan:

Excuse me, sir, that —

Earl Warren:

Was Mr. Crandall cross-examined as to whether — whether there was such a paper in existence?

John T. McTernan:

Mr. Crandall, as I recall, was not cross-examined at all at the hearing.

The — the request for the production of the document to the Court in the manner I’ve indicated was not abandoned or —

Hugo L. Black:

Can you give us the page, of — without too much delay, of this testimony where Mr. Crandall just responded which you rely on?

John T. McTernan:

Mr. Crandall’s testimony begins at page 752 —

Felix Frankfurter:

What volume?

John T. McTernan:

— of the record.

That’s the large volume.

Excuse me, the small Volume 2 of the — of the hearing record.

If you’ll notice, I was mistaken about his cross-examination.

John T. McTernan:

He was cross-examined beginning at page 756, and he says at 757, “I indicated in my memorandum to the officers that he had told me that he was having marital difficulties and felt that a reconciliation could be affected and that, for that reason, he would not like to testify further in the Jencks case.”

Hugo L. Black:

He’s talking now.

He’s giving the contents of the particular paper that which you had asked to be produced?

John T. McTernan:

That’s correct, Your Honor.

With the observation that I’ve tried to make clear throughout this, we did not ask that these documents be produced directly to us but to the trial court in the manner already indicated.

Now, if I may, I will pass on to our second point dealing with the instruction on membership.

The text of this instruction can be found at page 16 of our opening brief, the one with the green cover, or page 416 of the record.

Our contention is, first, that this instruction gave the jury no legal guidance whatsoever on the question of membership.

As we see the problem, the word “member” is not a self-defining term and there is no common understanding as to its meaning.

The usual approach of the courts has been to define member in each case in terms of the formal requirements of the organization itself, both as to becoming a member and as to remaining a member.

And, this Court’s construction of the statute appears to be in accord with this.

In Douds, it was said that in a case precisely like the one we have here, I don’t say that the Douds case was precisely like it but, in describing a set of facts precisely like the situation we have here, that the opinion says that the act of joining is crucial.

We read this to mean not that the Government must prove the specific act of joining in each case, say, as was done in Galvan against Press, but where that proof is lacking, the Government must prove a course of conduct that manifest the existence of the relationship.

And, in such a case, we submit to have probative force, this course of conduct should be related to the organization’s formal requirements or it would have little or no meaning.

Now, the charge here ignored both the specific act of joining and a course of conduct manifesting that the act of joining had been consummated and the relationship maintained.

The instruction did not advise the jury that any particular conduct need be found.

The charge was permissive.

It specified two kinds of conduct, attendance at meetings or holding office, either one or neither of which the jury might rely upon in producing and in reaching its verdict.

Ignoring both of these, the jury was permitted to consider what the Court described as conduct consistent only with membership or “all other evidence, direct or circumstantial, which bears or may bear upon the question of whether the defendant was a member on April 28, 1950.”

And, this, without any word of guidance as to what this kind of generality means, consist — conduct consistent only with member or all other evidence which may bear.

Did you submit a proposed — proposed charge or request a charge of that?

John T. McTernan:

Yes, we did, Your Honor.

It appears at page 462, I believe, of the trial record that the law requires.

They are at page 462 of the long instruction.

This instruction, we submit, the Court’s instruction now, not the one we submitted, left it to the jury’s personal notions as to legal principle and arbitrary selection of evidence to conclude whether or not, from the evidence, the petitioner was shown to have been a member on the critical date.

If I may return briefly to the question of attendance of Communist Party meeting, the evidence related attendance at “closed the Communist Meetings” or meetings attended by persons — only by persons “known to be members of the party”.

Now, we submit that this evidence is insufficient in law to prove membership because it is wholly circularly.

It assumes the fact sought to be proved.

As the Ninth Circuit pointed out in Bridges against the United States, if the defendant was not a member of the Communist Party, then all that his evidence proves is that he attended a meeting at which everybody else was a member.

Felix Frankfurter:

Mr. McTernan, may I ask you this question.

Felix Frankfurter:

The judge’s charge on membership, and what is a member, begins at the bottom of 415 and contained and was concluded in the — on the big line down at page 415.

John T. McTernan:

Yes, sir.

Felix Frankfurter:

That’s all he said, but — on membership, —

John T. McTernan:

Yes, sir.

Felix Frankfurter:

— is that all he said?

John T. McTernan:

Yes.

Felix Frankfurter:

Now, is your — is your — the main point at least, the specific point, that when he said you may consider — you may consider whether or not he attended the Communist Party, whether or not he ever know — whether or not he engaged in it, the main point of your dissatisfaction, your — your challenge with the adequacy of this charge, that that would have been made, to all unknown, the jury who found that the first count was satisfied if they found that he attended one or more Communist Party meeting?

John T. McTernan:

Yes, sir.

Our position, among others, is that they could have, found — on that charge, could have found him a member based on that Curry testimony in April 1946.

Felix Frankfurter:

And you say that — and all other — all the — whether consistently, membership in the Communist Party and all other evidence that even though, dramatically, you might say that qualifies that, first, whether a clause has too vague as an unguided — to serve as a guide for the jury.

John T. McTernan:

That’s our position, Your Honor, yes.

We point out that this language also, Your Honor, permits the jury to find the evidence or find the conclusion of membership upon pre-affidavit evidence alone and, indeed, invites that because the only evidence dealing attendance in Communist Party meetings and the only evidence dealing with holding office in the Communist Party is pre-affidavit evidence, the evidence that comes to an end in late July or early August 1949.

And, we submit that, under Douds, this is clearly impermissible.

Now, Mr. Chief Justice, I wonder if I might reserve my remaining 10 minutes —

Earl Warren:

You may.

John T. McTernan:

— for rebuttal.

Earl Warren:

Yes, sir.

John T. McTernan:

Thank you, sir.

Earl Warren:

Mr. Lindsay.

John V. Lindsay:

Mr. Chief Justice and may it please the Court.

The question before this Court is whether or not the trial judge in this case committed a prejudicial abuse of discretion in denying the petitioner several motions for production of FBI reports by or about witnesses who testified for the Government.

In other words, what are the tests with respect to the discovery, for purposes of impeachment, of FBI reports, both oral and written?

Now, if the Court please, I should like to focus the Court’s attention as to the problems which the courts are faced with in this case that are raised by this case, by discussing for a few moments, first, the FBI reports that have to do with the witness Ford.

Now, the witness Ford, just in summary, was a member of the Communist Party until September 1950 according to his uncontradicted testimony.

And, he testified, his latest testimony, so-called pre-affidavit, if that is significant, placed the petitioner at a Communist Party meeting in August of 1949 and he also testified that, as an officer of the Communist Party, as a member of the New Mexico State Board of the party, and also as the security officer of the party for all of that period, nothing had come to his attention up to the time of his severance from the Communist Party to indicate that the petitioner had withdrawn from the Communist Party.

Now, Ford testified that he reported to the Federal Bureau of Investigation over a period of a year, beginning in August of 1948 until August of 1949.

Now, at this point, I think it important to carefully draw a distinction between written reports and oral reports.

Ford’s testimony was that his practice was generally to give oral reports.

Beyond that, he could not recall, on any specific occasion, as to whether he had given a written report or an oral report.

But, we know from the record that his practice was generally to give oral reports.

John V. Lindsay:

Now, I know of no rule in criminal law that requires the production, even to the Court, of a memorandum of an interview with the witness for purposes of impeachment.

It seems to me that his ban has a limited application under the civil rules of federal procedure.

We know that in the Hickman case that it was even there stated that as to oral statements made by a witness to the lawyer in that case instead of the investigator, whether presently in the form of his mental impressions or memoranda, we do not believe that any showing of necessity can be made under the circumstances of this case to justify production.

And, the Court proceeded — this Court proceeded to layout the reasons for it because it puts the witness on the stand instead of the — the lawyer or the agent on the stand instead of the witness.

The practice that this Court forces the attorney to testify as to what he remembers or what he saw fit to write down regarding the witness’ remarks, such testimony could not qualify as evidence.

And, to use it for impeachment or corroborative purposes would make the attorney much less an officer of the court and much more an ordinary witness.

Now, if such oral reports, at a later time, are then put to writing by the agent —

Hugo L. Black:

Did you say agent?

John V. Lindsay:

FBI agent, I beg your pardon.

Hugo L. Black:

I thought that was an attorney.

John V. Lindsay:

Well, in the Hickman case —

Hugo L. Black:

Yes.

John V. Lindsay:

— there was an attorney —

Hugo L. Black:

Was there anything involved there except an attorney?

John V. Lindsay:

There was an attorney.

Hugo L. Black:

With that discussion?

John V. Lindsay:

There was an attorney, Justice Black.

And, we know, too, that, in subsequent law, that the — the civil rule with respect to production has been somewhat cut down from that when you use people who are not attorneys in — in civil cases.

The Shoe Machinery case, Judge Wyzanski’s opinion in Boston, I think, is quite revealing on that point, but I should like to say that, if the production of an oral report and the memoranda of the interview becomes at issue for impeachment purposes or for corroborative purposes or anything else, it is much more appropriate that it — the problem be considered during and, if the FBI agent testifies during his testimony on the stand, it then could or could not become relevant but that, of course, is not the case here.

Now, with respect to oral and written reports, both, the question here is, it seems to me, is whether there shall be an automatic rule of disclosure based upon the fact that there are reports, based upon the allegation of counsel that, there being reports, that there might be an inconsistency and, therefore, there should be a production to the Court in order to go through the reports to see if there is an inconsistency between what the witness is now testifying and what he may or may not have told the Federal Bureau of Investigation at some prior time.

Or, whether the rule, as the Government sees it, of the Goldman case and the Gordon case shall control, which is simply that it is within the discretion of the trial judge to determine whether or not, in the circumstances of the case that is unfolding before you, it is relevant to require production for his or counsel’s inspection of the so-called report.

Now, I’d like to say right here that we do not — the Government does not take the position that there must be an admission by the witness himself that there is an inconsistency and let’s, for the moment, confine ourselves to a written report, signed a statement, that there is an inconsistency between what the witness is now testifying and what he said at a prior time in that signed statement and that the point is material, and so forth, to the guilt or innocence of the accused.

If that is the case, discretion leaves off.

Production becomes mandatory, not only to the Court for inspection, but to counsel for the accused.

But, short of that, it isn’t — the Government’s position is that it is within the area of discretion for the trial judge to determine whether or not there has been an adequate foundation laid which would require him to exercise his discretion in favor of the accused and require production of the report and consideration, assuming it’s pinpointed, for his inspection or for counsel’s inspection as the case may be.

Now, I submit, further, that the record in this case will show that the petitioner made no showing of any foundation whatsoever, and I submit further that there was not even an attempt to make a foundation for the production of these reports.

It seems to me that the entire argument before Judge Thomason, if Your Honors will read that argument, at the trial rested entirely upon the petitioner’s interpretation of what the Second Circuit has held in this regard.

And, the petition there argued what the case, as decided by the Court of Appeals for the Second Circuit, make it mandatory to produce any statements, no distinction made between oral or written statements, any statement made by a witness to the Federal Bureau of Investigation at a prior time upon the mere allegation that there may be an inconsistency.

Now, this, I will readily concede that there is room for argument as about what the position of the Second Circuit really is on this point.

I think and I’m convinced that the Second Circuit has adopted a rule of practice under which the trial judge undertakes to examine statements of witnesses and, in each case that I have read, there has — there has been no distinction in those cases between oral or written.

John V. Lindsay:

I assume they are written because the Court continually talks about statements made by the witness.

Now, the Court there undertakes to examine these statements as a matter of practice but no case yet in the Second Circuit or any circuit has gone so far as to say that upon the mere command of counsel for the defendant in the case or allegation that there is an inconsistency or may be an inconsistency that there shall be a production of documents.

Earl Warren:

What suggestion do you have, Mr. Lindsay, as to the foundation that should have been laid by the defense in this case for that purpose?

John V. Lindsay:

I think that, in each case, it depends on the circumstances and the facts of that case and how it unfolds before the trial judge.

I think the demeanor of the witness is important.

I think the fact that there’s been a vigorous cross-examination as to when reports were made, what they said, who the agent was, whether they were written or oral, what they contained and, in any event, whether they contained anything inconsistent with what the witness is now saying and what he said at the time to the Federal Bureau of Investigation.

I think, further, that it is possible to lay a foundation by putting on impeaching witnesses.

It is possible to lay a foundation to put on the stand witnesses who testified at the very event as to which the witness is testifying and who say that the fact at issue never occurred.

Earl Warren:

How could you do that —

John V. Lindsay:

And, still —

Earl Warren:

How could you do that when there was just the witness and the defendant at conversations and when the only record of the — of the interview was a written record he had made to the Government?

John V. Lindsay:

Well —

Earl Warren:

How could — how could they bring impeaching witnesses to show that wasn’t true?

John V. Lindsay:

Well, I didn’t — I’m — I misspoke myself, Mr. Chief Justice.

I didn’t mean to say that it is necessary to have a third party present in the conversation between the Federal Bureau of Investigation and the witness, but it is possible to have — it is possible, in some cases, to put on the stand witnesses for the defense who would testify as to the event about which the witness is testifying at the time.

In other words, the witness may say that there is a meeting of the Communist Party or there was a gathering here or something was said here and he testifies, if he’s asked, that he said all these to the FBI agent or that he wrote it down or the FBI agent took notes, asked him to sign it, whatever it was.

He may — it may be possible in a case to have another witness, who attended the same function, testify that there was no such function or, if there was, the defendant in the case wasn’t even there.

All I’m trying to suggest Your Honor is that it seems to me that it is possible to have a showing made short of an admission by the witness himself that there has been an inconsistency made and, even short of a statement by the — by the FBI agent if he’s called to assist in laying the foundation, it seems to me that it is possible to raise enough of a problem in the trial judge’s mind so that, then, he could say, “Now, I believe there has been a foundation made and I would like to examine those reports myself.”

Earl Warren:

Well, let’s just take one situation, as I recall it from the argument.

I understood that Matusow testified that he had a — a conversation with the defendant, no one else being present, and that, at that conversation, the defendant told him that he was — that they were going to have an alliance with the Communist Union in Mexico for the purposes of — of thwarting the Korean War by stopping the — stopping the export of — of copper.

Now, I — I understood also that Matusow had said that he had no recollection of whether he had put that into his report or not.

Now, if he — if the man was paid by the Government to collect evidence and information concerning Communist activities in this country, wouldn’t it be reasonable to — to believe that it would bear on his credibility if he had not put that into his written reports made to the Government?

John V. Lindsay:

Let me answer your question in two points.

First of all, as to the specific instance, I made the statement in the early part of my argument that, in my judgment, there had been no even attempt to lay a foundation for the production of these reports.

Now, that is certainly true in case of the witness Ford who was the other Government witness, as to which there’s a question about production of reports.

Now, with respect to Matusow, in the entire record, there are two instances where Matusow was asked whether he told the FBI, whether particular — that a particular event had occurred.

This was one of them.

In that connection, I should like to say this, that that fact, that question was asked after the motion for production of Matusow — the Matusow reports had been made to the Court and denied and it was not renewed.

Of course when it comes to the hearing on the motion for a new trial, in my judgment, you have a different question, and I’ll get to that in a moment.

Now, secondly, I should like to say this, in answer to your question, sir, and that is that you got here a problem that is much more complicated, it seems to me in this particular case.

John V. Lindsay:

These can be classified as intelligence reports.

Now, right off the bat, let me say there’s no claim of privilege claimed by the Government in this case or confidence and the Government never made that assertion or any confidence in the files.

But, there is a real question as to the, I think, legitimate position of the — of the Government that it has a right to safeguard the privacy of its files as much as it can.

Intelligence reports of this sort may be voluminous.

One witness may give them over a series of a period of time which is very long.

There may be lots of them.

The FBI may go back to him and then cross-examine him as to points which he did or did not bring up which may not check or do check with the lead that it’s got from some other direction.

In the Smith Act case, I’m told that it can cover — a single series of reports from one witness can — can cover an extraordinary amount of time.

They may be written, they may be purely oral of memoranda of interviews, they may be notes taken by the agent at the time and then he dictates a report to his superiors later, or it may be a document that’s been initialed by the witness.

But, in any event, to require the trial judge to — on the command again, on the allegation that there might be an inconsistency, in any one of those reports or all of them, to go through a series of intelligence reports of that nature which is, in the case of the grand jury minutes, may contain names of perfectly innocent parties, and so forth and so on, may contain investigative techniques, may contain all sorts of things that have no relevance.

This, to me, brings the trial of the case.

And, to a trial within a trial, you go down side alleys to witnesses the defendant.

You get into fights and quibbles as to whether what he said was inconsistent with this or not inconsistent with this.

It may be in my point.

It may be an omission which, frequently, can happen when a witness or potential witness is — is interviewed by the FBI.

And, even a paid Government informant, he may, at the time, have a full recollection which is — which is, at a later date, refreshed.

So, I think that —

Earl Warren:

Well, that could be explained and go to his credibility, couldn’t it?

John V. Lindsay:

Well, I — sure.

I think it’s a — it’s a — given enough time and patience, I’m sure that — that a report, an FBI report, no matter how remote, even one that is oral that has been later put to writing, and its grandchildren, the report made from the report, which is — frequently happens, all of those, I’m sure, can be explained one way or the other.

But, what we have here really is a problem of the administration of criminal justice and are we going to tie the hands of the trial judge so that there’s no room for discretion left?

And, my point is, this is what I keep coming back to and emphasizing, is that in order to sustain the petitioner’s contention in this case, you’ve got to find an abuse of discretion and, to find an abusive discretion here, you’ve got to rewrite the rule altogether.

Earl Warren:

On the question of the burdensome character of it, I wouldn’t assume that the Government would try a case of this importance without inquiring into the question as to whether an informer of this kind had made written reports on the same subject he was going to testify to and, if they found them, it wouldn’t be difficult to produce them and, if there were no reports on the subject, it wouldn’t be — it wouldn’t be difficult to say so, would it?

John V. Lindsay:

Well, I think all — I — I think all the — the answer to each question is yes, that before — before going into a trial, the Government attorneys, of course, would — would examine everything that the witness had ever said in preparation for trial, or it may be that, in the case of a witness such as this, reports were received or made, may they be —

Earl Warren:

Yes.

John V. Lindsay:

— written or oral.

It had no reference to any particular case.

Earl Warren:

Yes.

John V. Lindsay:

In other words, you have — the Jencks case is not in mind necessarily when an intelligence report may or may not be received which may or may not pertain to — to Mr. Jencks.

Certainly, all of those are analyzed and distilled in memorandum made from those, and so forth and so on.

John V. Lindsay:

But, I cannot see that, in the interests of running a Court, which is what we’ve got here, that the trial judge, who has at his fingertips and sees the case unfold before him and has all of these factors before him, should — that his — his power — his discretionary power should be completely curtailed in his favor.

It seems to me that we’ve got to give the trial judge elbowroom in which to make these decisions in the course of a criminal case.

And, I submit that, in this case, as we’ve pointed out actually in the Hickman case with respect to written reports even, there was no room for the discretion to operate.

There was nothing shown.

Earl Warren:

Or would you carry that to the extent of — of the witness on this recantation hearing where the FBI agent — where Matusow, rather, testified that he had given a — a written report to the agent, the agent admitted that — that he had the report but that it said something different from what Matusow had said?Do you think, there, that the judge should have refrained from looking at it and —

John V. Lindsay:

Well —

Earl Warren:

— for the purpose of determining whether that was true after a man had confessed for being a perjurer?

John V. Lindsay:

I think it’s a — it’s a good question and it’s one that, in preparation for this trial, initially bothered me a great deal.

But, I’ll say this and I’m completely satisfied now that the Crandall report, which comes in issue on the hearing on the motion for a new trial, I think perhaps stands on even a stronger footing than does the question of the sweeping request made for all reports during the trial itself, and for this reason.

Matusow, at the time with the petitioner’s own witness, he testified when he was being cross-examined by the Government that he had had a conversation with FBI Agent Crandall and that he had said to Crandall, in the course of this conversation with Agent Crandall, “I told the FBI agent I didn’t want to testify in the Jencks trial.

I didn’t feel my testimony was honest.

Or, in substance, that is what I told him.

I didn’t want to ever testify and especially in the Jencks trial that was coming up.”

Now, right off the bat, there is, to me at least, an ambiguity about the statement made as to what he told the agent.

There’s room for question as to whether he told the agent that his testimony was not honest or whether he was describing to himself a motive at the time for saying to the agent that he did not want to testify.

But, that, in any event, at the time, remember, first, that Matusow was the petitioner’s own witness.

Second, Agent Crandall was put on the stand by the Government and the Agent, Crandall, was asked whether, in the course of this conversation, there, Matusow had ever said to him that he did not want to testify in the Jencks case because his testimony was not honest.

Counsel for the petitioner immediately objected to the question on the grounds that Matusow had never testified to any such thing.

Further, when Crandall was finished — when the Government was finished examining Crandall, the —

Earl Warren:

Did that — was —

John V. Lindsay:

The —

Earl Warren:

— that question answered?

John V. Lindsay:

It was answered and he said he did not, and the substance of Crandall’s testimony was to the effect that — that Matusow had said that, at the time he was trying to affect a — a reconciliation with his wife whom he split up with, and that the newspaper publicity was hurting him and he didn’t want to have anymore newspaper publicity, and would the agent please tell his superiors in Washington that.

Let me point out in this connection also that the report — so-called report there made was an oral report as to which the agent takes notes.

Thirdly, Matusow was never put back on the stand to clarify the ambiguity, to make clear what it was that he had said or not said to the FBI agent.

Now, in that setting, bearing in mind underneath it all that this is petitioner’s own witness at this point, it seems to me that it was not an abuse of discretion for the trial judge to say, “I’m not interested in the report.

I’ve heard all I need to hear.”

I — I would like to say —

Earl Warren:

Even though — even though he knew that Matusow was a perjurer one time or the other?

Even —

John V. Lindsay:

Well —

Earl Warren:

— at the trial —

John V. Lindsay:

Matusow had —

Earl Warren:

— or at —

John V. Lindsay:

— had —

Earl Warren:

— or at this hearing?

He had to be, didn’t he?

John V. Lindsay:

Well, in that — in — in that connection, this — I mean, this raises questions as to whether or not the Trial Judge’s holding on the motion for a new trial was correct or not correct.

The Trial Judge found that, after — after hearing the entire story unfolded to him as far as the testimony was concerned, that Matusow, in substance, had told the truth at the trial and he’s lying — he had lied at the hearing on motion for a new trial.

Earl Warren:

But, this goes back to your — your original statement to the effect that, in a proceeding of this kind, the judge should take into consideration character of the witness, his demeanor on the witness stand, whether there were any contradictory statements or anything in determining whether he would have a look at the — at the records that were disputed.

John V. Lindsay:

Well —

Earl Warren:

Now, don’t you think those things should have been taken into consideration here?

John V. Lindsay:

I think so, but I — but I’ve — I think this, too, has to be taken into consideration that all — all that petitioner was trying to do at this point was to bolster by a completely incompetent document the testimony of its own witness.

Earl Warren:

Well, suppose the —

John V. Lindsay:

Now, I —

Earl Warren:

— suppose the document had said that Matusow had told him he was dissatisfied with his testimony that it — in the grand jury that it wasn’t true.

Suppose it had, would it have been incompetent then?

John V. Lindsay:

Well —

Earl Warren:

Would it have been incompetent?

John V. Lindsay:

In the first place, if it — if it had said that, I don’t think the Government would be here in this —

Earl Warren:

Oh, but that —

John V. Lindsay:

— Court today but, —

Earl Warren:

— that isn’t the question.

John V. Lindsay:

— in any event, —

Earl Warren:

That isn’t the question.

You said —

John V. Lindsay:

Alright.

Earl Warren:

— it was an incompetent document, —

John V. Lindsay:

Alright, but —

Earl Warren:

— but wouldn’t it have been incompetent if it had contained any such matter?

John V. Lindsay:

No, because —

Earl Warren:

Well, then —

John V. Lindsay:

Well, then let —

Earl Warren:

When you find out —

John V. Lindsay:

Let — let me put it this way.

It depends — it depends entirely — it depends entirely on whether or not you can say, and this even is doubtful, you can say that a — impeached witness may be corroborated.

His testimony may be corroborated by a prior statement which otherwise has no competence at all.

Now, that — that’s a point of evidence which doesn’t stand on quite the same strong footing as does the case where a witness is being impeached and you need the document in order to show a prior inconsistent statement.

Earl Warren:

The witness for the Government supported his oral testimony by saying that he had taken notes and made a record of it.

John V. Lindsay:

The witness for the petitioner?

Earl Warren:

No, Crandall.

Crandall —

John V. Lindsay:

Crandall, I beg your pardon.

Earl Warren:

Crandall —

John V. Lindsay:

I beg your pardon.

Earl Warren:

— supported his testimony by saying that — that Matusow had told him about his family difficulties as being the reason for not — not wanting to testify and that he had made a written report —

John V. Lindsay:

No.

Earl Warren:

— of that to his superiors.

John V. Lindsay:

I don’t — I may be mistaken.

I don’t think he said anything about a written report at all —

Hugo L. Black:

Page 757, —

John V. Lindsay:

— when he was asked.

Hugo L. Black:

— he says, “I indicated in my memorandum —

John V. Lindsay:

Yes, alright.

Hugo L. Black:

— to the officer —

John V. Lindsay:

Alright.

Hugo L. Black:

— that he had told me that he was having marital difficulty and said he couldn’t recall all that’s in the report,” Mr. Lindsay.

John V. Lindsay:

Yes.

Well, I —

Earl Warren:

Now, that —

John V. Lindsay:

I — it seems to me that — that, in — in this situation that you’ve described, that if you’re going to — if you’re going to assume that a witness’ testimony on the stand can be corroborated by a memorandum which he didn’t even write, you’re going to have to write a new rule of law.

Now, I — I think that — again, I’d like to emphasize the difference between oral and written reports particularly because the decision in this case and the court’s ruling on this point will have such tremendous significance in the whole area of criminal law, in Narcotic cases, and the rest of them that if the Court is going to carve out an exception from the general rule of — of — insofar as we understand it, the accepted rule in all of the circuits with the possible exception of one, and that’s very doubtful, of a — of a clear showing made, a foundation made, before the discretion of the Trial Judge is shut off, if the courts are going to do that, I think it most important that it be very careful about the difference between oral and written reports.

And, I think that it — I think it’s important, too, to show what the tests are, which — which will control the production of these files, the opening up of these files.

Hugo L. Black:

May I ask you why, in reference to the Crandall testimony and according to your strictest idea of the foundation, this wasn’t enough here in this respect.

A witness gets on the stand and says that “I told the FBI agent that my testimony was dishonest,” of course that brings the responsibility on the Government right away.

According to its exigent last week, it’s their problem.

John V. Lindsay:

To examine his trials.

Hugo L. Black:

It’s their problems.

You have that statement by the witness.

Then, they declined to turnover a memorandum when they asked him.

Then, they put on the FBI agent.

He remembers there was a conversation that the man did not want to testify.

He says he did not help make the statement about being dishonest, but that he made a memorandum at the time and reported it to the officer.

He didn’t remember what was in the memorandum.

Why wouldn’t that be a sufficient foundation in any kind of case —

John V. Lindsay:

I — I don’t think —

Hugo L. Black:

— under the golden rule?

John V. Lindsay:

I don’t think that Crandall said he didn’t remember whether he made a — whether he — did Crandall say that he didn’t recall whether —

Hugo L. Black:

Did you indicate in your report, —

John V. Lindsay:

What he put in the —

Hugo L. Black:

“I don’t recall that I indicated that in my report”?

That’s about the — emotionally upset so he didn’t remember whether he put that in there or not.

John V. Lindsay:

Well, I don’t — I don’t understand that — that Crandall’s testimony that — I don’t understand that anybody is trying to bolster or impeach Crandall’s testimony at this point.

Hugo L. Black:

Witness Crandall is on the stand.

Whatever it is, they’re trying to show that the Government had information which, according to our decision in the Gordon case, it was its duty to disclose, as I understand it, if the statement of Matusow was correct.

To the effect that the witness, who — upon whose evidence a man had been convicted, came to the FBI agent and said his evidence was not honest and the Government has then opposed an objection to getting in the memorandum which was made by the FBI agent to whom he made that report.

John V. Lindsay:

Well, it’s — I have to break down my answer, if you bear with me.

First of all, the Government made no objection and the Court made a ruling before the Government had time to say anything.

Hugo L. Black:

Well, whether it did not —

John V. Lindsay:

That’s incidental, but I —

Hugo L. Black:

— asked you, the Government —

John V. Lindsay:

— but I —

Hugo L. Black:

— approved.

Meanwhile, it would have said, —

John V. Lindsay:

Yes.

Hugo L. Black:

— “why, we think —

John V. Lindsay:

Sure.

Hugo L. Black:

— it ought to be in.”

John V. Lindsay:

Sure, alright.

Secondly, I don’t — I don’t see — I don’t see that the Trial Judge committed error in denying this request after this highly ambiguous statement had been made by the witness and, matter of fact, no request for production was made until another 60 pages later in the record this highly ambiguous statement, which the Government tried to clarify and petitioner’s counsel objected to the attempt to clarifying.

Hugo L. Black:

But when it — when it came out, you had testimony by an — by a witness.

He told the FBI agent that his evidence was dishonest and the FBI agent that had asked not to testify, the FBI agent said “yes, he asked me not to testify,” and — but he said, “he did not tell me or deny that his testimony was honest.”

Now, instead of looking to the memorandum which might have shown, one way or the other, the Government rests on the Court’s objection to the evidence.

John V. Lindsay:

Well, if that’s — I mean if the petitioner in undertaking in the setting of this case to impeach the credibility of Crandall, you would have a different picture.

It might be that — it might be that, with Matusow’s testimony, assuming he even clarified it to show what he did say to the FBI, with my — I keep coming back, Mr. Justice Black, to the point that I think is important.

That is that the setting of the thing is all important and, as this particular event unfolded before the Court with the petitioner’s objection to the attempt to clarify the ambiguous statement, and so forth, plus the fact that — that Matusow was the petitioner’s own witness, whom the petitioner was seeking to bolster with an intelligence report, I can’t say that that, at the time, was an abuse of his discretion.

Now, if he hasn’t got the discretion, that’s a different story, and then we start all over again.

Earl Warren:

Well, Mr. Lindsay, it wasn’t so ambiguous but what the Government chose to put Crandall on the stand and interrogate him about it on the theory that it was unambiguous and that — that Matusow had said that he told him his testimony was dishonest.

Now, the Government interpreted that that way at the trial, put a man on to deny categorically any such construction of that conversation, didn’t he?

John V. Lindsay:

Fair, yes.

Earl Warren:

Well, then, how can you say that anyone proceeded on the theory that it was so ambiguous that you — you could disregard it?

John V. Lindsay:

I — I don’t rest on that, Mr. Chief Justice.

Earl Warren:

Well, you say that —

John V. Lindsay:

I say that that’s — that that is part of the picture here.

Earl Warren:

Yes.

John V. Lindsay:

The other part of the picture here is that Matusow is — is the — is the petitioner’s own witness.

Crandall was the Government’s witness.

There was no attempt made to impeach Crandall by asking for this particular memorandum which was written by Crandall.

Now, my point is — is that — is that, whether it’s good law or bad law, perhaps we should talk about a judicial conference at this — if there’s going to be a — what I mean to say, if there’s going to be a complete rewriting of the law in this area, which I think so deeply affects trial courts and the administration of criminal justice, let’s to be certain what we’re doing here.

And, I think —

Felix Frankfurter:

Isn’t that — isn’t that the ultimate question in this case rather than to ask the others, mainly, that we are a whole lot, because of this problem, really raising the question what affirmative, if you please, aggressive responsibility rests with the trial judge more than to be a monitor there than in an ordinary case.

The very judge is to remove any question of trial by taking an active position to see to it that there is no problem.

Don’t we ultimately get to that question in this case, in this kind of a problem?

John V. Lindsay:

Well, I think — I think that’s correct.

I — yes, I’d agree with you on that, Mr. Justice Frankfurter, but I would say I —

Felix Frankfurter:

You — you’d allow your —

John V. Lindsay:

— I think that this ultimately —

Felix Frankfurter:

I think you’re justifying it, if I may ask you this, you’re quite justifying, from my point of view, what you have, in the Hickman case, is a problem of the declaration and you’re quite justifying it.

I just wonder whether these are comparable to whether the administration of criminal justice is comparable to the kind of consideration that, from my point of view, as you know my concurrence to Justice Jackson for the United States would be there expressed.

I think this is — I — I welcome, as you said, this raises far-reaching questions in regard to the administration of criminal justice in the federal courts to find an example, in my point of view, that the Federal Government should set in regard to this case.

Earl Warren:

Do you think the judge did remove the cloud here?

John V. Lindsay:

Putting myself into this record and examining what happened at the time, and reading also the whole sweep of the hearing on the motion for a new trial, I think the judge acted amply within his discretion and correctly.

I’m convinced of it.

I think — I think that if — I — I fully agree that you’ve got two —

Felix Frankfurter:

Amply unless —

John V. Lindsay:

You —

Felix Frankfurter:

— unless you meet the standards of your —

John V. Lindsay:

That’s right.

Felix Frankfurter:

— responsibility —

John V. Lindsay:

Correct.

Felix Frankfurter:

— that you indicated them in.

John V. Lindsay:

That’s correct and that — that may be something that — that shouldn’t be thrashed out with trial judges —

Felix Frankfurter:

Well, —

John V. Lindsay:

— and so forth.

Felix Frankfurter:

— you can’t do that without it.

John V. Lindsay:

They may have some ideas on this subject.

Felix Frankfurter:

We’re thrashing it out now.

John V. Lindsay:

There’s no doubt in my mind but what you’ve got two competing principles here.

You’ve got, one, the principle that you must do the utmost to secure justice in every criminal case.

On the other hand, you’ve got to —

Felix Frankfurter:

And the appearance of it.

John V. Lindsay:

And the appearance of justice, too.

Felix Frankfurter:

Not, too, because nobody knows what justice is.

John V. Lindsay:

After my preparation here, I’m inclined to agree.

Then, you must also — then, you must also weigh the — the other principle which is that you cannot lay down rules.

It seems to me that, in this case, in order to sustain the petitioner, you would have to be a very sweeping rule in this area, which, make convictions almost impossible.

Now, I — I think that it’s a —

Hugo L. Black:

Now, why do you say — why do you say that?

John V. Lindsay:

Well, I –I —

Hugo L. Black:

I don’t understand it at all.

John V. Lindsay:

Let me point out this.

Here’s — here, for example, — here, for example, is the language of Judge Learned Hand in a case involving a request for reports of results of Government investigators to his superiors in the Department of Justice.

Now, this is a 1920 — this is a 1938 case.

It isn’t quite in point, except it is to the extent you’ve got oral reports here, memoranda of interviews with witnesses.

And, Judge Hand says this, “as to the report there, there is not the slightest showing that it was competent as evidence.

It could only be so in the case, in case it contradicted Swaney’s testimony, which was not likely.

The defendant seemed to suppose that they had the privilege of roaming about it well among any memoranda made by the prosecution in preparation for trial.”

That, indeed, is not an uncommon illusion but it has nothing whatever to support it.

My — my point is that, under existing law and under the record of the case here, there was no abuse of discretion and I think that you would have to find it in order to make an exception to the general rule of some sort of a showing of need, foundation laid at the time.

William J. Brennan, Jr.:

How is the defendant going to — going to get that information?

John V. Lindsay:

Well, they have in — again, I stress that, in each case, it depends on — it depends on the circumstances of the case whether or not there’s been a foundation laid, and — and it may be —

William J. Brennan, Jr.:

It may be that the only information of that — that affect falls in the files of the FBI or the Government.

John V. Lindsay:

Well, that may possibly be but, then, this was in the trial judge’s discretion as to whether or not he will exercise it in favor of the defendant, depending on a lot of factors there.

All I say is that — is that the trial judge has no choice in the matter, if there’s any showing of inconsistency made.

Do you say —

John V. Lindsay:

In short of that, —

— do you say it’s an indispensable if you — you said that each case is to stand on its own bottom, and so forth, but do you — do you recognize any distinctions to the rule that you’ve got to show prior inconsistent statement in order to lay a foundation, or in —

John V. Lindsay:

Exceptions —

Yes.

John V. Lindsay:

— to the rule?

Do you say that’s an indispensable prerequisite, to move the trial judge to action and inspect the inspection and —

John V. Lindsay:

Not —

— inspect the file?

John V. Lindsay:

— not necessarily.

In this case here, if the trial judge had ordered the production of these reports for his inspection, the Government wouldn’t have claimed error.

It’s within his discretion to have done it.

The only point is, when does the judge lose his discretion?

When — when has he no choice?

And, he’s got no choice if there’s been such a foundation made.

Felix Frankfurter:

Mr. Lindsay, and you may talk about motions, I think an example of motions, there’s one motion in this conversation that was overlooked, namely, wasn’t there a motion for the contemporaneous reports of Matusow himself?

John V. Lindsay:

Well, there was.

There were — there were two separate motions made —

Felix Frankfurter:

Yes, now —

John V. Lindsay:

— with respect to Matusow.

Felix Frankfurter:

Is —

John V. Lindsay:

One —

Felix Frankfurter:

Isn’t — wasn’t there a showing that Matusow has asked the question of character?

And, I’m not now questioning the legitimacy of the trial court finding that he was dutiful at the trial.

I’m think that he was, but isn’t — if you have a witness like that, isn’t that sufficient?

One entitled to be sufficiently worried about it to proceed, whether the contemporaneous report — after all, ever weighed contemporaneous company it had to have granted at least that motion.

John V. Lindsay:

I think that’s a — I think that, as a hypothetical, it’s a fair question.

I don’t think it’s this case.

Felix Frankfurter:

That is not this case.

That is a hypothetical.

John V. Lindsay:

I don’t think it’s this case, I’ll tell you why.

At the trial — at the trial itself, there was no question about Matusow’s reliability as a witness.

It came up on the — it came up after Matusow recanted.

Felix Frankfurter:

Yes.

John V. Lindsay:

And then, there was a very serious question.

Now, apart from the Crandall report which we’ve just been discussing, there was another series of reports which at the hearing on the motion for a new trial, there came a question as to whether or not there should have been a reproduction of those reports.

John V. Lindsay:

What Matusow was testifying to at the hearing had no relation to anything he’d said at the trial.

Felix Frankfurter:

Well, it had the relation of — of rating great enough trustworthy —

John V. Lindsay:

With respect —

Felix Frankfurter:

— of trustworthiness, not as to specific evidence, and I’m not suggesting that a man who has forced one to report enough evidence and who pulsated quickly may be telling the truth.

He said “bring him outside” and then, he did.But, wasn’t there a sufficient daubery about the organic untrustworthiness of this petitioner?

John V. Lindsay:

Well, let me put it this way, that there was one motion made for production of FBI reports that had been made by Matusow to the FBI.

Again, you have the problem of oral and written.

What, at the recantation hearing, Matusow had said that the FBI reports would support his present testimony on, that testimony had no relation to anything that he testified to at the trial.

Let — let me be more specific.

He testified at the hearing on the motion for a new trial that he did not tell the FBI that Jencks was a Communist or that Jencks had identified himself to him, Matusow, as a Communist.

Number one, at the trial, Matusow had never said anything about Jencks being a Communist.

He had not said that Jencks was a Communist and he had not said that Jencks had identified himself to him as a Communist.

Felix Frankfurter:

But the whole tenor of his testimony was put in — to put him into that can.

What — is that what we’re speaking of into what he was saying?

John V. Lindsay:

Well, that — that’s quite true.

Felix Frankfurter:

That’s the question of his testimony.

John V. Lindsay:

That’s quite true.

I’ll — I’ll quickly concede that and I — and there, again, I come back, Mr. Justice Frankfurter, to what I said before which is that — that if, on those grounds alone, you do carve out an exception from what we understand to have been the general rule in the past that we — that we keep in mind the distinction between oral reports and written reports because they can become very remote, extremely remote, and the other thing that we are — are extremely careful that we set down some sort of test or standard that is livable for trial judges, —

Felix Frankfurter:

And —

John V. Lindsay:

— workable.

Felix Frankfurter:

If I may so, I’m very sympathetic to your insistence of speaking of this problem.

You’re insisting on the importance of this problem with all of the insation of criminal justice, and I’m particularly sympathetic.

It does not occur unduly, not been served the discretionary power of the trial judge.

I suppose they’re from this bench.

They are all discussed but they’re all incomparable.

They’ve shown a large power in the district judges.

They alone are being better than, as you’ve mentioned, they now are, and I’m entitled to the bench with your insistence in performing your duty in pressing down the cause.

I suggest to having, at the end of the day, just sick of these things as a perception through a pigeonhole to find a pigeon.

When you deal with the administration of criminal justice, you’re dealing with something very different from ordinary civil lawsuit from my time.

Their issue involved a touch of moral responsibility of the Government, in a way.

Felix Frankfurter:

In my point of view, there are hardly any here.

That’s because they’re sensitive.

John V. Lindsay:

Now, I think that’s correct, and I — I think that the Government is discharging its moral obligation in this case.

Felix Frankfurter:

I — I think you are, in the argument you’re making.

John V. Lindsay:

Well, now, if I may, may I pass for just a few moments to the question of the adequacy of the charge to the jury.

The charge on membership is —

Felix Frankfurter:

By the way, before you go onto that, I — before you sit down, you realize you both deal with this problem.

In case the Court should conclude, and I need not say to you that that was me or what I think is all it’s for, in case the Court should conclude or one should conclude that a particular motion in regard to the production of documents should have been granted, what is your recommendation, what is your submission for the Court on what other issues, if any, could be considered?

John V. Lindsay:

I’m –I’m not sure —

Felix Frankfurter:

Did I make myself clear?

John V. Lindsay:

— I’m not sure I understand the question.

You mean as to whether we should take into the question the adequacy of the charge, and so forth?

Felix Frankfurter:

Well, yes.

How did they — if one thinks one of these motions should have been granted, that would call for a reversal, wouldn’t it?

John V. Lindsay:

I don’t — yes.

Yes, sir.

Felix Frankfurter:

They would.

Then, the question arises, what other issues call for adjudication?

Issue that you’re about to go into.

Earl Warren:

I’d like to add —

Any one thing to what the Justice has said.

We don’t know what’s in these records now, I take it.

Suppose that we agreed with the — your opponents in one of these motions, it should have been granted, should we reverse this case out of hand or should we remand it for the purpose of having the trial court find out what is in the records?

If nothing is there, of course, the conviction is all right, isn’t it?

John V. Lindsay:

It seems to me that it would be appropriate to remand.

Well, I —

John V. Lindsay:

Off the top of my head, I —

So, can they —

John V. Lindsay:

I haven’t thought the question through, particularly.

Felix Frankfurter:

Well, you would have to deal with both of these bodies —

John V. Lindsay:

But the —

Felix Frankfurter:

— left in case one of these motions —

John V. Lindsay:

Well —

Felix Frankfurter:

— for us.

John V. Lindsay:

Alright.

Felix Frankfurter:

You don’t have to answer right now.

John V. Lindsay:

May I say this.

May I — may I preface —

Felix Frankfurter:

I gave you a question, I believe.

John V. Lindsay:

May I preface the answer which I’d like to try to give by this.

There is another question here and that is this, that you’ve got two sets of documents here as to which there were motions.

One pertained to the witness Ford and that is the one that I’ve talked about initially, and the other to witness Matusow.

At the — when the hearing on the motion for a new trial was concluded, the trial judge found that Matusow, substantially — in his judgment, substantially testified truthfully at the trial and had not testified truthfully at the recantation.

And, he found also — he found also that, in any event, and I don’t say this is particularly pertinent right now but I’d like to just point it out before I go to the question, that Matusow’s testimony was, in a large part, corroborative and not necessary to sustain — to the sustaining of the conviction.

He —

Earl Warren:

Do you —

John V. Lindsay:

— described that —

Earl Warren:

Do you think the judge was accurate in that finding?

John V. Lindsay:

I think he was.

Earl Warren:

How about —

John V. Lindsay:

My —

Earl Warren:

— the conversation that he had with — Matusow said he had with Jencks, to the effect that Jencks told him that he and the other Communists on this side of the border were arranging with the Communists on the Mexican side of the border, by a strike, to stop the production of copper so there would be no export of copper for the Korean war, do they — did he consider that inconsequential?

John V. Lindsay:

He did and let me show you, if I may, what the — let me tell you what the Court of Appeals said about that very point, which I think is relevant.

The Court of Appeals said there is another point of difference between the situations faced respectively by the District Judge in the Flynn case and the court below in this case.

In the Flynn case, Matusow’s testimony was so vital and uncorroborated with respect to the two defendants, granted new trials, that the Court felt they would not had been convicted without it.

Here, the situation was quite different.

The testimony of Matusow, and most of its fundamental aspects being merely cumulative and the facts being established by credible testimony from other witnesses, what he said concerning appellant’s activities in the National Association of Mexican-Americans, commonly referred to as ANMA, furnishes a good illustration.

Now skipping a bit, Witnesses Ford and Pearson established definitely that ANMA had long been an important concentration point in the work of the Communist Party in New Mexico.

Ford and Terrazas corroborated Matusow’s partly recanted testimony of appellants admitted activity in the organization and no facet of that proof was left without convincing corroboration.

Earl Warren:

Alright.

Earl Warren:

Now, can you — can you give me one single bit of testimony in this — in the case that was more damaging to Jencks so far as advocating violence and overthrow of this Government by force and violence than this particular testimony that I just called your attention to.

John V. Lindsay:

Well, I —

Earl Warren:

Any — any single piece of testimony in the whole case.

John V. Lindsay:

I think that the — I think that you got the — you can’t — you can’t single it out.

I think that the — the whole sweep of the testimony here is — is a — as far as Jencks —

Earl Warren:

Is there anything more direct then?

Let me put it this way.

Is there anything more direct, —

John V. Lindsay:

I think —

Earl Warren:

— against his participation so far as force and violence is concerned, than this particular testimony?

John V. Lindsay:

Well, there, again, this isn’t a force and violence question or case.

Now, this —

Earl Warren:

It isn’t?

John V. Lindsay:

It is not, Your Honor.

Earl Warren:

It isn’t the point you were trying to —

John V. Lindsay:

It is a question to whether or not he told the truth when he said he was a member of the Communist Party.

Earl Warren:

Well, I know but you’re reverting back to the importance of Matusow’s testimony in this case and how it affected the jury in their — in their verdict.

And, I asked you whether there’s any more important testimony in this case in that particular conversation —

John V. Lindsay:

There is —

Earl Warren:

Or anything that connects —

John V. Lindsay:

Yes.

Earl Warren:

— up more closely with the defendant Jencks.

John V. Lindsay:

There is substantial evidence by several witnesses in the record to indicate that Jencks had a specific test which was the recruitment of labor, including Mexican labor, into the rank-and-file of the Communist Party.

Earl Warren:

Is that — do you consider that as strong as this testimony I just pointed out to you?

John V. Lindsay:

On the issue of this case.

The — the question — the question here is whether — this is no — there isn’t any question here about whether he should or should not have been a member of the Communist Party.

The only question here is whether or not he — his affidavit was truthful in saying that he was not a member of the Communist Party when the jury found that he was.

Earl Warren:

Let me put it to you this way.

How did they corroborate?

How did they corroborate this testimony of Matusow’s concerning this conversation with Jencks?

Earl Warren:

The Court says, practically, all of it is corroborated.

What is the corroboration?

John V. Lindsay:

Well, the testimony of — testimony of — Let me see if I could pinpoint it.

Testimony of the witness Ford, which is described just in summary at page 9 of the Government’s brief, points out that Jencks attended the meeting of Communist Party leaders in Santa Fe in August of 1949 to prepare plans for the meeting of the — forthcoming meeting of the Mexican-American Association in Albuquerque.

And, the leader of the northern section of the Communist Party in New Mexico, as opposed to the leader in the southern section who was Jencks, instructed all present to give vigorous support to the forthcoming meeting, and so forth, but not to be conspicuous.

During the course of that meeting, — during the course of that meeting, a resolution was introduced calling for the association, suggesting that proper tactics was for the Mexican-American Association to disavow publicly Communist support.

That resolution was defeated, in the presence of Jencks, by Jencks’ own wife.

That’s part of the testimony.

Then, the witness Terrazas, I think, the Court of Appeal has discussed that testimony.

Well, I don’t put my finger on it —

Earl Warren:

Never mind.

John V. Lindsay:

— right now.

Earl Warren:

Finish your argument, Mr. Lindsay.

I could read this record.

John V. Lindsay:

We’re just turning, in the few minutes that I have left, to the membership portion of the judge’s charge to the jury.

It strikes me, in studying this charge and particularly the judge’s portions of the — the balance of the charge instructing the jury to — to take into account all of the evidence, and he said that several times, that the standards set by the judge coincide almost exactly with the language of this Court in Galvan versus Press.

There, the Court laid down or mentioned what it thought it was proper for the hearing officer in that case, that being a deportation case, to consider in arriving with the conclusion that the respondent in that case was a member of the Communist Party.

And, the charge, it seems to me, here, stated the necessary qualifications or what the jury could consider in order to find membership in the Communist Party.

In particular, the Court mentioned that the Court — that the jury could consider attendance of Communist Party meetings, holding office in the Communist Party, as to which there is testimony.

Earl Warren:

What page are you reading?

John V. Lindsay:

I’m — I’m reading from page 416 of the record in volume — in the first volume, number — the first one.

Attendance in Communist Party meetings, holding office, engagement in any other conduct consistent only with membership, and all other evidence which bears and may not bear from the question of whether or not he was a member.

Any number of occasions after that, throughout the charge, you will see that the judge instructed the jury, that on this question, to take into consideration that it must — it must take into consideration all of the evidence.

Now, on the question of the portion of the charge dealing with affiliation with the Communist Party, first of all, in passing, let me remind the Court that, under concurrent sentences, if the judgment of the Court as to one is affirmed, the judgment in its entirety should be affirmed.

And, as to this charge, reliance on the Bridges case, I think, is misplaced.

That, being a violent overthrow case and a necessity, was, there, required to show connection with the respondent and a party advocating violent overthrow for the Government.

And, the charge also there said that they must connect with — they must find the defendant had connected himself with the Communist Party, had adopted the Party, and it indicated that they must find that there was more than sympathy, and so forth.

In conclusion, the Government submits that the judgment of the court below be affirmed.

Could I ask you one question that perhaps is a little off the beat, but I’m interested in it.

As a former trial lawyer myself, I am wondering why, in all of these cases, the Government seems to be consistently taking the position that it won’t produce these documents when you think that the pure tactics and strategy of the case would result in instantaneous presentation.

Is there a rule in the department that betters the judgment of the Assistant United States Attorneys in giving this material simply because it becomes an FBI files?

John V. Lindsay:

There — there is, in the United States Attorney’s manual, a — an instruction to United States Attorneys that they are not to disclose FBI reports.

That’s what I suspected.

John V. Lindsay:

That is correct.

That’s what I suspected.

John V. Lindsay:

That is correct.

Under many instances and, again, here, I think it is fair for me to say that, had there been a requirement by the judge for production here, there would have been no charge of error on the Government’s part.

We think it was a perfectly proper exercise of discretion under all the circumstances, and we think it was a correct result.

Or if the United States Attorney had been free to act, why, you wouldn’t have had this problem, but that’s not this case.

Earl Warren:

Mr. Lindsay, would you mind giving us some memorandum as to what course you think you should be followed if any motion to produce was erroneously denied.

And, secondly, if the motion to produce should have been granted, should there be a reversal or a man to the trial judge to pass on the motion in this — in this case?

Would you mind —

John V. Lindsay:

I’d be glad to do that.

Earl Warren:

— to produce the memorandum for us, and —

Hugo L. Black:

May I ask one question, Mr. Lindsay.

As I understand it, the judge has held that Matusow was guilty of prejudice?

John V. Lindsay:

In — in this case here?

Hugo L. Black:

Yes.

John V. Lindsay:

I don’t think —

Hugo L. Black:

And —

John V. Lindsay:

— you can say just that.

Hugo L. Black:

— in deciding to grant a new trial.

Earl Warren:

On the motion —

Hugo L. Black:

On the motion for new trial.

John V. Lindsay:

Well, he found —

Hugo L. Black:

That he had perjured himself from saying —

John V. Lindsay:

Because he found that Matusow, at the —

Hugo L. Black:

— that he had perjured himself with the first testimony.

John V. Lindsay:

At the — on the — his — you — you have to concede that, after he have — that after he had the motion on the hearing for new trial, the judge found that he — he didn’t testify truthfully on that hearing — at that hearing.

Hugo L. Black:

Well, that shows he testified in both, does it not?

John V. Lindsay:

Yes, Your Honor.

Hugo L. Black:

Now, that being the case, I would like you to add in your memorandum this.

If he testified in both and this evidence is important — was important, as it undoubtedly was, that he — whether accumulated or not, why, under the action we took last week, should we do anything except to reverse the case and demand a new trial?

John V. Lindsay:

Alright, sir.

I’ll take care of that in my memorandum.

Earl Warren:

Mr. McTernan, you may have an opportunity to file a memorandum also after — after he files it, if you wish.

John T. McTernan:

Thank you, Your Honor.

Earl Warren:

No obligation.

Could you do that in a very short time, Mr. Lindsay?

Could you do that in a very short time?

John V. Lindsay:

I will, Mr. Justice.

Earl Warren:

Thank you.

John V. Lindsay:

I’ll send a copy to Mr. McTernan.

John T. McTernan:

Thank you Mr. Lindsay.

I have —

Earl Warren:

Be prompt also.

John T. McTernan:

— space and time problems, Your Honor.

California is rather distant from Washington.

May I have a reasonable time considering those problems to respond to Mr. Lindsay’s memorandum?

Earl Warren:

Well, we — yes, you may have a reasonable time, but when could you get yours in, Mr. Lindsay?

John V. Lindsay:

Well, not being as — as aware of the problems of printing and whatnot as I should be, I —

Earl Warren:

You don’t have to have —

John V. Lindsay:

— suppose a week or so.

Earl Warren:

— put it in printing.

You may — you may have it in typewriting.

John V. Lindsay:

I — I assume we can do it in a few days, two or three days.

Earl Warren:

Well, I would think so.

John T. McTernan:

Two days?

Earl Warren:

Yes.

Two days?

Earl Warren:

Give two days to you plus mailing time, Mr. McTernan.

John T. McTernan:

Thank you, sir.

If Mr. Lindsay would get it to me, I’ll arrange for him to get it to me in New York before I return to California and I’ll file a response —

Earl Warren:

Yes.

John T. McTernan:

— before I leave.

Earl Warren:

Thank you.

John T. McTernan:

If the Court please, I agree, as I tried to indicate in my opening argument that the Court is confronted with a serious problem of policy in the administration of criminal justice by the contentions we raise here.

I think, however, that the Court should not deal itself and find not to decide the problem, as we urge that it would be decided, by what I would characterize, good naturedly, as a bugaboo which the Government — I think the Government is presented here.

In the first place, this is not a novel problem in the administration of justice, although it is the first time this problem has reached this Court.

The role adopted in the Second Circuit, as I understand it, is very clear.

Judge Learned Hand, a few days after writing the opinion in the Krulewitch case, described in the Cohen case what the Krulewitch case stood for.

And, he said, there, we held that when statements are taken by the prosecution which appear upon inspection by the judge to contradict the testimony of the witness when he is called at the trial, the accused should be allowed to inspect them since he cannot, otherwise, impeach the witness.

Now, I think it is important that we emphasize two things from that statement, that the contradiction appears as the result of the inspection by the judge and the practical — the problem that, otherwise, the contradiction will not appear because it lies not within the power of the defense to show the contradiction except through the mouth of the witness under cross-examination.

I would say that the case was so rare that it hardly deserves consideration that, under other circumstances, the contradiction between the report or statement and the witness’ trial testimony could appear except on the cross-examination of the witness himself.

Felix Frankfurter:

I suggest you leave out of account the momentum of such a precedent.

It’s (a) that this is not a serious problem, that the only thing you used was a matter only been made an obvious case, leave out of account the forcefulness, the enterprising feel of the bar in criminal —

John T. McTernan:

No, Your Honor, I don’t leave that out.

I haven’t gotten to it yet, but I think that —

Felix Frankfurter:

But you said this is a bugaboo.

John T. McTernan:

Well, I think that — I think that what counsel has said in part is a bugaboo because he’s making a kind of problem beyond its proper proportion.

We are not asking here for the distillations of what the witness reported in the memorandum that go back in phalanx after phalanx in the Department of Justice files.

We’re asking for the witness’ statement.

We’re not asking for all of the witness’ statements.

We’re asking for narrowly described statements dealing with specific transactions concerning which he has testified.

Felix Frankfurter:

In this case.

John T. McTernan:

In this case.

Felix Frankfurter:

That’s what I — I understand.

I’m suggesting the Court’s precedence and I’m also suggesting something that ought not to be left out of account that we judges can easily rule in criminal cases.

John T. McTernan:

Either way, Your Honor.

Felix Frankfurter:

They could — they don’t — it’s easier to rule towards not to be reversible error.

Felix Frankfurter:

If they rule in favor of the defendant’s motion, they’re safe.

I speak from experience on the case of the Honorable Court.

John T. McTernan:

I’m sure Your Honor does and I — and I — while I don’t want to get us involved in —

Felix Frankfurter:

Maybe you’re observing and maybe, on the coast, they’re all strong-minded but, on the east side, there were some judges who were not strong-minded.

John T. McTernan:

I’ve known judges who are in both sides of the fence in all parts of the country, Your Honor, and all I suggest is that weakness, if it exists, can hurt the defendant here as well as it can hurt the prosecution because I have found in my criminal experience that weak judges often tend to decide in favor of the prosecution not only because they are afraid of reversals.

Felix Frankfurter:

All I’m suggesting is that you do not minimize what you, on your main argument, conceded.This raises a serious question in the administration.

John T. McTernan:

I stand by that statement, Your Honor, but I want it — I want the seriousness of the problem presented in its proper dimensions and contour.

Now, where a problem, and this goes to the momentum argument, where the problem is presented to the trial court in the kind of terms that counsel described asking for voluminous records of undetermined description, it’s easily disposed of, as a trial judge did in the Mesarosh case, and it’s reported and cited in our opinion, where he said that “unless you can describe the documents narrowly, I will not consider it” and he refused the request because they weren’t described narrowly.

If the problem is that the reports that counsel said involved other people, and this is akin to the grand jury transcript problem that you raised, Mr. Justice Frankfurter, the inspection by the trial judge protects the Government’s interest there because this is not a situation in which direct access to the defense is asked for, only access by the defense to the portions which the trial judge says is relevant.

Now, let me discuss how this works out practically because I’ve had this motion granted.Judge Dimock granted this motion in the trial of Flynn.

And, there, he examined the report and he covered up the parts which he thought were not relevant and released only the parts which were relevant, and he protected the Government’s interest —

Felix Frankfurter:

Pleaded it up —

John T. McTernan:

— in its entirety.

Felix Frankfurter:

It bothers me that I’m not totally happy of fully attacking.

I’m putting the responsibility on the District Judge’s determination, whether they had contradiction, not giving the defendant counsel access to that determination.

That, in itself, raises the question and, sure is shooting.

The extent to which you say or encouraging the district judges in exercising the inspection — the inspecting power, we will be presented and certainly are to be sympathetic towards the argument that, after all, that’s what counsel are for, to point out the force of an argument which the judge may not see but counsel may see.

John T. McTernan:

Yes.

Felix Frankfurter:

This is full of ramification in this part.

John T. McTernan:

I think it presents that difficult problem.

The Second Circuit has held it, by directing counsel to ask that the document be sealed for purposes of review on appeal.

Now, it doesn’t meet your entire problem.

What it gives, the defendant an additional opportunity, at least, to get another judicial reaction —

Felix Frankfurter:

But how could —

John T. McTernan:

— to the document.

Felix Frankfurter:

Very often, he’d like to argue with the Court and say, this isn’t a contradiction when the Court might not be as sensitive and perceptive as counsel is saturated with the implication.

John T. McTernan:

That — that’s correct and —

Are the documents that you requested, are they before us in sealed form —

John T. McTernan:

No, sir.

— of some kind?

John T. McTernan:

Not —

They’re not part of this record?

John T. McTernan:

Our request, to that end, was denied.

We asked Judge Thomason to seal them for purposes of the appellant record and refused to do so.

The documents were never produced to anybody, and so far as I know, they weren’t even in the courtroom.

They were not permitted to take a look at it.

John T. McTernan:

That’s right.

I recognize that our motion places a responsibility on the trial judge to make a determination as to relevance.

I simply ask that, in the interest of the sanctity of the administration of justice, it’s reliance upon truth that the trial judge is so not burdened rather than that the power to determine it be left with a suspect witness who can simply avoid the whole problem by either saying “I don’t remember that there is a contradiction” or “there is no contradiction.”

May I emphasize again that the discussion of the Crandall report may have created the impression here that the motion which was directed to the trial judge at the hearing for the contemporaneous reports was, in effect, the same motions as had been made and was directed to the same report as the motion made at the trial.

In other words, the contemporaneous reports were at issue by virtue of our motion at the trial for purposes of cross-examining Matusow and again at the hearing for purposes of rehabilitating Matusow.

Now, I say that, in those terms, sure, counsel’s statement that the judge had discretion to say “I’ve heard all about this case, I care to hear.

I don’t need anything more” falls at its own weight because, with showing of contradictory statements between trial testimony and hearing testimony, where the long showing which the Government had made as to repeated statements by Matusow.

First, that “my trial testimony, all of my testimony, similar to my trial testimony was true.”

But, on the other hand, saying it’s dishonest.

This gave the trial judge no discretion, I submit, to say “I have heard all” until he had in fact heard all, and he had not heard all until he saw those contemporaneous reports.

May I also refer again to the Matusow testimony, I submit that there is no corroboration of Matusow, and Matusow corroborates no one.

He talked about events in 1950.

The other testimony dealt with the events in 1949 going back to 1946.

This organization ANMA that was referred to is not the Mexican Miners’ Union.

This is an — a separate organization in the United States composed of people in the United States.

There is no corroboration between Matusow and any other witness.

Hugo L. Black:

The trial judge, in other words —

John T. McTernan:

Excuse me, sir?

Hugo L. Black:

— if the trial judge found there was corroboration?

John T. McTernan:

I don’t find — I don’t read what he said as finding corroboration.

What he said, in effect, was that he disbelieved the recantation and that he thought there was enough, over and above Matusow, to support the verdict.

This is what the court below said.

I think that portions of the two holdings are erroneous because the pre-affidavit evidence, I submit, as a matter of law, is not sufficient to support the verdict.

Hugo L. Black:

Suppose there was enough without that to support a verdict.

Hugo L. Black:

If a verdict had been rendered on that limited evidence, can you apply that rule to say that where it was not on that limited evidence but this purported evidence was offered, which is there, that the judge ought to take the place of the jury in determining if this man ought to be convicted?

John T. McTernan:

No, Your Honor.

That — I agree with your statement.

We don’t quite reach of that problem here as we presented the questions but, obviously, if we follow the rule of the Griffin case on a motion for a new trial, we — it would be dogmatic to say that the jury’s knowledge of Matusow’s admitted perjury could not have affected the verdict.

It would seem to me that, had this come out before the jury, we, at this stage of the case, and no appellate court could say that the result might not have been different or might not have been affected.

Could I just address myself to the question that both the Chief Justice and Mr. Justice Frankfurter raised as to, in the event the Court decides that —

Earl Warren:

Yes.

John T. McTernan:

— one or more —

Earl Warren:

Yes, you may.

John T. McTernan:

— of the motions was improperly decided, what should this Court do.

Hugo L. Black:

Now, you would have no complaint in this case, which you have, while the trial was on, after Matusow had testified as he did the first time.

He had then come on the stand and told the jury that he had lied the first time.

The jury had found that he had not and had convicted even though his evidence was in.

That would be quite a different situation to this, would it not?

John T. McTernan:

Yes, it would.

I think we —

Hugo L. Black:

Then, you would have the jury passing his evidence knowing that he had claimed he was a perjurer.

John T. McTernan:

Right.

Hugo L. Black:

But you have not had that and cannot get it anyway except by another jury trial.

John T. McTernan:

That’s correct, Your Honor.

That’s correct.

Earl Warren:

Now, you may answer that —

John T. McTernan:

Thank you, sir.

I would say, at the outset, that if this Court should decide that one or more of our motions on these documents had been improperly refused, it would justify a reversal and a remand.

I would say, however, that it is important also in the administration of justice, so far as this statute is concerned, that the court passed on the instruction points, particularly in membership and affiliation.

This case prevents precise — almost precisely the same instruction that was involved in the Hofmann case, on which certiorari was denied.

I’m informed that almost the same point comes up in connection with the Travis case which is now pending in the Tenth Circuit.

And, if there is to be a new trial and the jury is to take a look at such facts as the Government now can decide on this, the same question of instructions will — will confront us in the trial court, and I submit that it would be a duplication of effort if this case were to be sent back to be submitted to a jury on these instructions because I submit that they are fatally improper and vague.

Earl Warren:

You may let that stand as your statement, if you wish, without making — filing a memorandum, Mr. McTernan, just as you please.

John T. McTernan:

Thank you, sir.

John T. McTernan:

Well, there are other matters that Mr. Lindsay has —

Earl Warren:

Yes.

John T. McTernan:

— write on that I probably would want to reply to.

Earl Warren:

Very well.

John T. McTernan:

Thank you.

Earl Warren:

Very well.