Lev v. United States

PETITIONER:Lev
RESPONDENT:United States
LOCATION:U.S. District Court for the Southern District of New York

DOCKET NO.: 435
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 360 US 470 (1959)
ARGUED: Apr 27, 1959 / Apr 28, 1959
DECIDED: Jun 22, 1959

Facts of the case

Question

  • Oral Argument – April 28, 1959
  • Oral Argument – April 27, 1959 (Part 1)
  • Audio Transcription for Oral Argument – April 28, 1959 in Lev v. United States
    Audio Transcription for Oral Argument – April 27, 1959 (Part 1) in Lev v. United States

    Audio Transcription for Oral Argument – April 27, 1959 (Part 2) in Lev v. United States

    Earl Warren:

    Mr. Eben, you may proceed.

    Anthony Bradley Eben:

    Thank you, Your Honor.

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

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

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

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

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

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

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

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

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

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

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

    And, according to Carlin, there was.

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

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

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

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

    Then — was there anything —

    Anthony Bradley Eben:

    Third —

    Did — did Carlin say anything in his testimony as to whether he had adopted it or seen it?

    Anthony Bradley Eben:

    No, sir.

    No, sir, he did not.

    The record is silent on that.

    Anthony Bradley Eben:

    His — his testimony — his testimony only was that he believed he had signed it.

    Yes, I —

    Anthony Bradley Eben:

    That was all.

    Yes.

    Anthony Bradley Eben:

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

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

    Felix Frankfurter:

    The Jencks came down after the trial.

    Anthony Bradley Eben:

    Excuse me?

    I said the Jencks came down after the trial court?

    Anthony Bradley Eben:

    Yes.

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

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

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

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

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

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

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

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

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

    Charles E. Whittaker:

    May I ask you —

    Anthony Bradley Eben:

    Now —

    Charles E. Whittaker:

    May I ask you, sir, did counsel for your client, Lev, make any demand for the production of such a statement?

    Anthony Bradley Eben:

    No, sir.

    Charles E. Whittaker:

    He did not?

    Anthony Bradley Eben:

    He did not.

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

    He was the very first.

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

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

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

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

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

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

    Potter Stewart:

    Did you renew an objection after the Rubin connection emerged?

    Anthony Bradley Eben:

    There was no other objection after that.

    Potter Stewart:

    Or no request for the statement at that point?

    Anthony Bradley Eben:

    No, sir.

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

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

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

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

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

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

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

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

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

    There is no positive language there whatsoever.

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

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

    Felix Frankfurter:

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

    Anthony Bradley Eben:

    Well, the question of fact arose this was way, Mr. Justice Frankfurter.

    Carlin had testified that he had signed the statement.

    Belavan said that there was no signed statement.

    That was one question.

    The second one was, even if they had not —

    Felix Frankfurter:

    The news of the statement would disclose who is right, wouldn’t it?

    Anthony Bradley Eben:

    Excuse me?

    Felix Frankfurter:

    The statement itself would show whether it was or wasn’t signed.

    Anthony Bradley Eben:

    Yes.

    That would show right on its face.

    Felix Frankfurter:

    So that —

    Anthony Bradley Eben:

    That would show on its face, whether it was signed or not but, then, I point out —

    Felix Frankfurter:

    Before you —

    Anthony Bradley Eben:

    It might have been adopted.

    Felix Frankfurter:

    Before you go onto that, I — if it were signed, if the statement is signed, in your view, does that automatically bring it within the statute?

    Anthony Bradley Eben:

    Yes, sir.

    Felix Frankfurter:

    Well, now, whether it was or it wasn’t signed can be determined by inspection, can it not?

    Anthony Bradley Eben:

    That’s right.

    Felix Frankfurter:

    Did the Court of Appeals inspect to find out whether it was signed?

    Anthony Bradley Eben:

    No.

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

    Felix Frankfurter:

    Well, therefore, you’re not contesting the finding by the Court that it wasn’t signed, do you?

    Anthony Bradley Eben:

    No.

    Felix Frankfurter:

    No?

    Anthony Bradley Eben:

    No.

    Felix Frankfurter:

    You then say — I want to go step by step because it’s a very tricky statue, at least for me.

    Anthony Bradley Eben:

    Yes, it is.

    Felix Frankfurter:

    You then say that the statement might be adopted or approved.

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

    It might be adopted without being signed.

    Anthony Bradley Eben:

    It might be adopted or approved by the witness, if not signed.

    Felix Frankfurter:

    As to that, what is your position?

    Anthony Bradley Eben:

    Excuse me?

    Felix Frankfurter:

    As to that, what is your position?

    Anthony Bradley Eben:

    We say, we don’t know.

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

    Felix Frankfurter:

    Well, if the — if the record is barren of a scrutiny of that issue, nobody can tell.

    Anthony Bradley Eben:

    That’s right, and without cross-examination of valid —

    Felix Frankfurter:

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

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

    Anthony Bradley Eben:

    Well, actually —

    Felix Frankfurter:

    What they —

    Anthony Bradley Eben:

    What we’re contending for would be a voi dire examination.

    Felix Frankfurter:

    I —

    Anthony Bradley Eben:

    And, we say that —

    Felix Frankfurter:

    But they would have to be now.

    Felix Frankfurter:

    It couldn’t be on the document itself.

    Anthony Bradley Eben:

    That’s right.

    There would be no acknowledgment.

    Felix Frankfurter:

    And t cannot be decided on the record as it was produced at the trial because, then, this problem wasn’t in existence —

    Anthony Bradley Eben:

    That’s actually right.

    Felix Frankfurter:

    Because it exactly wasn’t in existent.

    Anthony Bradley Eben:

    That’s correct.

    Felix Frankfurter:

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

    Anthony Bradley Eben:

    I say, it might well have been established at the trial.

    Felix Frankfurter:

    Well, but it — from this record, it couldn’t have been established at the original trial because that was in nobody’s mind.

    Anthony Bradley Eben:

    That’s right.

    It was never there.

    Felix Frankfurter:

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

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

    Anthony Bradley Eben:

    That’s correct.

    Felix Frankfurter:

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

    Anthony Bradley Eben:

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

    It seem —

    Felix Frankfurter:

    But a document may show on the face — a document may show on its face that it was not a substantially verbatim recital.

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

    Anthony Bradley Eben:

    Yes, sir.

    I did document for it, I presume.

    Felix Frankfurter:

    Yes, and — or it may show the opposite, or it may be in doubtful territory.

    Anthony Bradley Eben:

    Yes, and it is to the third view that I lean.

    Felix Frankfurter:

    Yes.

    Anthony Bradley Eben:

    And I — we urged that some other place in our brief.

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

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

    Felix Frankfurter:

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

    Anthony Bradley Eben:

    Well, it had been —

    Felix Frankfurter:

    After all, nobody is in a better position than he to —

    Anthony Bradley Eben:

    It had been laid.

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

    Felix Frankfurter:

    Well, that, to me, doesn’t prove that there were two statements.

    Anthony Bradley Eben:

    Well —

    Felix Frankfurter:

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

    Anthony Bradley Eben:

    In view of the witness’ testimony that he believed he signed one.

    Felix Frankfurter:

    Well, witness —

    Anthony Bradley Eben:

    I say it’s within the logical possibilities that there were two statements.

    Felix Frankfurter:

    Well, you had an opportunity to counter that affidavit, didn’t you?

    Anthony Bradley Eben:

    They — there were no counter affidavits filed.

    Felix Frankfurter:

    Well, now —

    Anthony Bradley Eben:

    The affidavits were —

    Felix Frankfurter:

    You had an opportunity to file some, didn’t you?

    Anthony Bradley Eben:

    No.

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

    No counter affidavits were ever filed.

    Felix Frankfurter:

    Well, you weren’t tr —

    Anthony Bradley Eben:

    And, there was no way the counsel could know, really, without cross-examining.

    Felix Frankfurter:

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

    Anthony Bradley Eben:

    Well, I think we were already at that point —

    William J. Brennan, Jr.:

    Well, how would —

    Anthony Bradley Eben:

    May it please Your Honor.

    William J. Brennan, Jr.:

    The defendant tell that anyway?

    You’re talking about Carlin.

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

    Felix Frankfurter:

    That’s correct.

    William J. Brennan, Jr.:

    He was a Government witness, wasn’t he?

    Anthony Bradley Eben:

    That’s right.

    Carlin was —

    William J. Brennan, Jr.:

    How would you —

    Anthony Bradley Eben:

    A Government witness.

    William J. Brennan, Jr.:

    How would you know that?

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

    Anthony Bradley Eben:

    In no fashion whatsoever.

    Felix Frankfurter:

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

    Anthony Bradley Eben:

    I say that that is a logical possibility —

    William J. Brennan, Jr.:

    Well, rely on that.

    Felix Frankfurter:

    But did you —

    Anthony Bradley Eben:

    Mr. Justice Brennan points out —

    Felix Frankfurter:

    That’s — evidently, I’m not making myself clear.

    I understand your argument.

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

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

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

    Anthony Bradley Eben:

    Well, I — I

    Felix Frankfurter:

    You can put all that in the affidavit.

    Anthony Bradley Eben:

    In my opinion, Your Honor, that would have been repetitive.

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

    Felix Frankfurter:

    Because they’re repetitive, because the — I hope your experience in life is better that mine.

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

    It’s very possible.

    Anthony Bradley Eben:

    Well, I think, under the circumstances which —

    Felix Frankfurter:

    I thought even Carlin’s testimony might be treacherous.

    Anthony Bradley Eben:

    Well, it could be.

    Felix Frankfurter:

    And it remains to be treacherous.

    Anthony Bradley Eben:

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

    Felix Frankfurter:

    Probably — they probably didn’t know and, incidentally, they didn’t know.

    They wouldn’t be —

    Anthony Bradley Eben:

    Probably didn’t care there.

    Felix Frankfurter:

    They didn’t care.

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

    Anthony Bradley Eben:

    Well, I assume that they might have done that, in any event, I must concede that, on the record, there’s —

    William J. Brennan, Jr.:

    All right.

    Anthony Bradley Eben:

    No such thing is charged.

    William J. Brennan, Jr.:

    Tell me, Mr. Eben, I gather, you’d never seen the statement, had you?

    Anthony Bradley Eben:

    No, I never had, Your Honor.

    William J. Brennan, Jr.:

    And no one on behalf of defendant has ever seen the statement?

    Anthony Bradley Eben:

    No defendant has ever seen it.

    William J. Brennan, Jr.:

    Now, did you see the affidavit?

    Anthony Bradley Eben:

    The affidavit —

    William J. Brennan, Jr.:

    The Belavan affidavit?

    Anthony Bradley Eben:

    The affidavits were made available to the appellants on appeal.

    They became part of the record.

    William J. Brennan, Jr.:

    And — and was the significance to the affidavit argued in the Court of Appeals?

    Anthony Bradley Eben:

    Yes, they were.

    I — I wasn’t in the case at that particular time.

    I’ve examined the briefs and there was argument on that —

    William J. Brennan, Jr.:

    Well, in the affidavits —

    Anthony Bradley Eben:

    –and the statements of it.

    William J. Brennan, Jr.:

    — in the affidavit, does there appear a statement that the sealed envelope with the statement in it contained a statement which was unsigned?

    Anthony Bradley Eben:

    Yes, that’s correct.

    William J. Brennan, Jr.:

    It does.

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

    Anthony Bradley Eben:

    I don’t believe so.

    Felix Frankfurter:

    But it was in the record, wasn’t it?

    Anthony Bradley Eben:

    Yes.

    I don’t think it’s in the record.

    Felix Frankfurter:

    Presumably, judges read records before they decide questions of facts.

    Anthony Bradley Eben:

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

    Anthony Bradley Eben:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Earl Warren:

    Go ahead, finish your sentence.

    Anthony Bradley Eben:

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

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

    Thank you very much.

    We submit that this matter should be remanded.

    Earl Warren:

    Mr. Treiman.

    Albert H. Treiman:

    May it please the Court.

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

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

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

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

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

    Felix Frankfurter:

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

    Albert H. Treiman:

    That is exactly correct, Your Honor.

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

    Albert H. Treiman:

    Prior to that, we had no knowledge whatsoever.

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

    William J. Brennan, Jr.:

    Now, when you discovered this from the Government’s brief, what did you do then?

    Albert H. Treiman:

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

    William J. Brennan, Jr.:

    How did you argue this, on oral argument or by a —

    Albert H. Treiman:

    On oral argument, Your Honor, because the matter was submitted shortly before oral argument.

    It was presented for us —

    William J. Brennan, Jr.:

    Did you file a reply brief or anything?

    Albert H. Treiman:

    I believe some of us had filed a reply brief, yes.

    William J. Brennan, Jr.:

    Addressed to this —

    Albert H. Treiman:

    That’s correct.

    William J. Brennan, Jr.:

    File?

    Albert H. Treiman:

    At the very last moment, just before walking into the Court of Appeals to argue.

    Felix Frankfurter:

    Does the — does the record show when and by what formality this statement — this affidavit was submitted to the Court of Appeals?

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

    Albert H. Treiman:

    To the best of my knowledge, Your Honor, it was submitted at the same time that the —

    Felix Frankfurter:

    Well, that makes a lot of difference.

    I asked you the question.

    I asked you —

    Albert H. Treiman:

    I do not know the date, sir.

    Felix Frankfurter:

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

    I thought you said the answer to that was yes.

    I’m bound to say that —

    Albert H. Treiman:

    No.

    Felix Frankfurter:

    Would have shocked me.

    Albert H. Treiman:

    No, I — no, I believe that is not correct, sir.

    I believe that the ex parte affidavit was filed simultaneously —

    Felix Frankfurter:

    But it wasn’t ex parte —

    Albert H. Treiman:

    — with the Government’s brief.

    Felix Frankfurter:

    — if you were given notice of it.

    Albert H. Treiman:

    Well, it was ex parte in this sense that it was made a — a part of the record without our knowledge that it was going to be made a part of our record and it was submitted after we had —

    Felix Frankfurter:

    Well, that’s true of —

    Albert H. Treiman:

    — submitted our briefs.

    Felix Frankfurter:

    — that’s true of every pleading.

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

    I don’t call that ex parte.

    Earl Warren:

    Were you served copies of the pleading, of the affidavit itself?

    Albert H. Treiman:

    We were served copies of the affidavit simultaneously with the brief.

    It was contained in the brief —

    Earl Warren:

    (Voice Overlap) —

    Albert H. Treiman:

    — in the answering briefs.

    Earl Warren:

    In the brief?

    Albert H. Treiman:

    That’s correct.

    And, that was the first knowledge we had.

    Felix Frankfurter:

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

    I would not call that according to the law.

    Albert H. Treiman:

    Well, may I continue with the argument.

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

    There were six defendants on trial.

    Each represented by their own counsel.

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

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

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

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

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

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

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

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

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

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

    Albert H. Treiman:

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

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

    Charles E. Whittaker:

    May I ask you, was the understanding between counsel and court that the objection is one which stands throughout —

    Albert H. Treiman:

    That —

    Charles E. Whittaker:

    One stipulation?

    Albert H. Treiman:

    It was in a form of a pretrial stipulation, Your Honor, yes.

    Charles E. Whittaker:

    The finding in this record here today?

    Albert H. Treiman:

    I don’t know.

    It may be in the pretrial part of the record.

    There was such a stipulation amongst all counsel.

    Charles E. Whittaker:

    It related to the conduct, objections only, do I understand?

    Albert H. Treiman:

    It related to objections.

    It related to, also, requests that were made.

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

    Now, this appears in the transcript of the record.

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

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

    Charles E. Whittaker:

    With the Court?

    Albert H. Treiman:

    With the Court.

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

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

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

    Thank you.

    Earl Warren:

    Mr. Sullivan.

    John T. Sullivan:

    Mr. Chief Justice and may it please the Court.

    It was I who made the objection.

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

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

    What happened was this.

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

    John T. Sullivan:

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

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

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

    I had asked him whether he had given a statement.

    He said “I believe I have.”

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

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

    Then, that was overruled.

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

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

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

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

    And, I quoted the Gordon case.

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

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

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

    I was clearly let off my guard.

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

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

    But, I was completely led astray.

    I would have made that objection.

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

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

    I had intended to get every statement.

    I knew that there were many statements.

    This case had started with the McClellan Committee.

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

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

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

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

    John T. Sullivan:

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

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

    Felix Frankfurter:

    I do — I don’t see what more you could have done.

    John T. Sullivan:

    I don’t see either.

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

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

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

    I believe I know them better that anybody.

    I took more part in this trial than anyone.

    I open to the jury or I closed.

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

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

    Bonita had two partners, Levy and Ades.

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

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

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

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

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

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

    So, that was all there was to that enterprise.

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

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

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

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

    These were very close questions of fact.

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

    So that, Carlin’s testimony was not secondary.

    It was very critical.

    It was the foundation stone of their case.

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

    John T. Sullivan:

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

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

    There was Addison.

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

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

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

    They try to get all the favors.

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

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

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

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

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

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

    Well, all this happen.

    Harry Lev took the contract.

    They built a plan.

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

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

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

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

    Out came the Lev case.

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

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

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

    There was a contract called the Wollman contract.

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

    Can I make an inquiry?

    What is all this directed to?

    I understand —

    John T. Sullivan:

    This is directed, Judge — Justice Harlan, to the Solicitor General’s statement of the overwhelming proof.

    John T. Sullivan:

    I just want to —

    Anything that’s up here is that Jencks issue.

    John T. Sullivan:

    That’s correct.

    What’s all these got to do with it?

    John T. Sullivan:

    Harmless error, if Your Honor please.

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

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

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

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

    Charles E. Whittaker:

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

    John T. Sullivan:

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

    Charles E. Whittaker:

    You made a request for a statement that Carlin said he thought he’d made, and that’s the only one, isn’t it?

    John T. Sullivan:

    That’s correct.

    Charles E. Whittaker:

    (Voice Overlap)

    John T. Sullivan:

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

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

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

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

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

    To get Carlin’s version of what had transpired.

    To ask Carlin’s — Carlin questions.

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

    This is not a verbatim transposition of what he said.

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

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

    It is not due process.

    Unconstitutional on what ground?

    John T. Sullivan:

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

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

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

    John T. Sullivan:

    There is no state secret involved.

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

    It’s imposing a hardship, a handicap.

    It does not get at justice at all.

    It defeats justice.

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

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

    The c —

    Hugo L. Black:

    How do you say that it violates the constitutional —

    John T. Sullivan:

    It’s — I say —

    Hugo L. Black:

    Is he compel — the defendant should be allowed to call witnesses in their behalf, to be confronted by witnesses.

    How did you say it violates it?

    John T. Sullivan:

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

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

    Hugo L. Black:

    Do you argue that you have a right to summon witnesses to bring papers, as well as to summon witnesses for the defendant?

    John T. Sullivan:

    I say that I have a right to subpoena those papers.

    Once I find they are in existence.

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

    Hugo L. Black:

    Even if the witness may decide it indeterminately.

    John T. Sullivan:

    I determine it —

    Hugo L. Black:

    This is the only constitutional question you’ve raised.

    John T. Sullivan:

    The constitutional question I raised, Justice Black, is that, once I have learned that there is such statement on cross-examination —

    Hugo L. Black:

    Why do you have to learn it?

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

    John T. Sullivan:

    What is that, Justice Black?

    Hugo L. Black:

    The Court has to know that your summon does not prove it.

    It doesn’t make a difference how you learn it or present it if you had —

    John T. Sullivan:

    I don’t know —

    Hugo L. Black:

    If you have anything that’s on the constitutional point.

    John T. Sullivan:

    I don’t know.

    Hugo L. Black:

    The constitutional protection of a defendant to summon witnesses in his own behalf, is that —

    John T. Sullivan:

    Correct.

    Hugo L. Black:

    What you’re raising there?

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

    John T. Sullivan:

    Yes, he can.

    Hugo L. Black:

    Without regard to cross-examination, I suppose that has nothing to do with that judgment.

    John T. Sullivan:

    That may — that’s entirely true, Justice Black, but the cross-examination is the means whereby I learn whether or not they are in existence.

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

    That’s when I learned it.

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

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

    Hugo L. Black:

    How does that particular part of your argument come within the constitutional provision that authorizes the defendant to summon witnesses in his behalf?

    John T. Sullivan:

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

    Hugo L. Black:

    Then, you go to confrontation.

    John T. Sullivan:

    Yes.

    I — I don’t say that it stops me from serving a subpoena.

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

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

    Hugo L. Black:

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

    John T. Sullivan:

    I say, that —

    Hugo L. Black:

    In a criminal case.

    John T. Sullivan:

    In a criminal case, that is a limitation and an abridgement of my right to be — of — for the evidence to be made available to me.

    Hugo L. Black:

    And?

    John T. Sullivan:

    The statement, I mean.

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

    Hugo L. Black:

    Well, I understood you were claiming that it violates the constitutional protection and I’m trying to find out which one, in your argument.

    John T. Sullivan:

    Well, I think it certainly violates the Constitution on the Fifth Amendment as to due process.

    Hugo L. Black:

    Well, that —

    John T. Sullivan:

    I also say that not to permit — not to order that statement to be produced to me is a limitation of my cross-examination.

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

    Hugo L. Black:

    Do you treat confrontation as including —

    John T. Sullivan:

    Including cross-examination.

    Hugo L. Black:

    Cross-examination.

    John T. Sullivan:

    I guess that’s my answer to your question.

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

    I wish to amplify that to some extent.

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

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

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

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

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

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

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

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

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

    One was an accomplice, Levy.

    He was unindicted, clearly an accomplice.

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

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

    He was a certified public accountant.

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

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

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

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

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

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

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

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

    I think the record shows that.

    Thank you very much for your attention.

    Earl Warren:

    Mr. Davis.

    Hugo L. Black:

    Mr. Chief Justice and may it please the Court.

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

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

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

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

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

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

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

    Felix Frankfurter:

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

    Oscar H. Davis:

    Well, there are, I think, two before you in addition to this one.

    Felix Frankfurter:

    That is pre —

    Oscar H. Davis:

    Pre-Jencks Act cases.

    Felix Frankfurter:

    Pre-Jencks —

    Oscar H. Davis:

    Pre-Jencks —

    Felix Frankfurter:

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

    Oscar H. Davis:

    I know of, I think, two that are before your Court.

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

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

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

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

    It was tried under the Act.

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

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

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

    The Palermo case would be the next succeeding case.

    It involves the Internal Revenue Service.

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

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

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

    Oscar H. Davis:

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

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

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

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

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

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

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

    I shall try to spell it out —

    Felix Frankfurter:

    Which I infer that the judgments are controlled by same considerations.

    Oscar H. Davis:

    They may not be controlled by that.

    Felix Frankfurter:

    They’re not.

    Oscar H. Davis:

    That is exactly right, Mr Justice.

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

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

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

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

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

    As to which, Lev was the dominant factor.

    Now, the second procurement was the white hat procurement.

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

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

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

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

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

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

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

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

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

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

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

    Oscar H. Davis:

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

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

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

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

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

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

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

    He was one of the witnesses.

    He was actually the second witness.

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

    This is a record that barely shrieks of guilt.

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

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

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

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

    As to petitioner Wool, Carl —

    Felix Frankfurter:

    And is that the only question as to Lev before us?

    Oscar H. Davis:

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

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

    Felix Frankfurter:

    No.

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

    Oscar H. Davis:

    He did in his petition —

    Felix Frankfurter:

    Yes, but he —

    Oscar H. Davis:

    But the Court limited, as to this, that that’s all —

    Felix Frankfurter:

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

    Oscar H. Davis:

    That is right.

    Felix Frankfurter:

    All right.

    Oscar H. Davis:

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

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

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

    Oscar H. Davis:

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

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

    Charles E. Whittaker:

    May I —

    Oscar H. Davis:

    Pardon?

    Charles E. Whittaker:

    May I ask was it confined to objections in each defendant that was partly the demand for production?

    Oscar H. Davis:

    As I recall the discussion, there was no agreement as to — a demand for production as to — by one defendant standing for all.

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

    Hugo L. Black:

    May I ask you, if you are going — intend to take up, during the argument, any of these cases?

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

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

    I ask that on this basis.

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

    That may or may not.

    So, answer this.

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

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

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

    Oscar H. Davis:

    No, sir.

    Hugo L. Black:

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

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

    Oscar H. Davis:

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

    Hugo L. Black:

    I have no doubt about that.

    Oscar H. Davis:

    — if — if we are wrong as to that, then we don’t even reach any constitutional issue.

    Hugo L. Black:

    I ask you that on the basis —

    Oscar H. Davis:

    Yes, sir.

    Hugo L. Black:

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

    Oscar H. Davis:

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

    Hugo L. Black:

    I have to ask.

    I don’t care to rush you.

    I just —

    Oscar H. Davis:

    I understand.

    Hugo L. Black:

    Why the cases were up —

    Oscar H. Davis:

    But I’m —

    Hugo L. Black:

    And you’re getting to it.

    I just hope that —

    Oscar H. Davis:

    Yes.

    Hugo L. Black:

    –during your time, you’ll discuss it.

    Felix Frankfurter:

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

    I can’t understand that.

    Oscar H. Davis:

    Well, no, sir.

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

    The Government can be compelled to produce statements which the other side can’t be compelled to produce under the —

    Felix Frankfurter:

    Alright, don’t argue it.

    Oscar H. Davis:

    Yes, sir.

    Felix Frankfurter:

    I just wondered whether — what there was to that Act.

    It’s all mysterious to me.

    Oscar H. Davis:

    I had not heard it before.

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

    Hugo L. Black:

    Then why — I don’t want to get in and argue with that bit, but does that necessarily always follow?

    Many witnesses.

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

    Oscar H. Davis:

    That’s right, but it w — for the — they can’t be t —

    Hugo L. Black:

    You’re talking now about the cross-examination?

    Oscar H. Davis:

    Yes, that’s right.

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

    I shall hope to come back to that.

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

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

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

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

    Oscar H. Davis:

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

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

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

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

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

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

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

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

    William J. Brennan, Jr.:

    Are you sure about that?

    Oscar H. Davis:

    Pardon?

    William J. Brennan, Jr.:

    Are you sure of that?

    Oscar H. Davis:

    I’m not?

    William J. Brennan, Jr.:

    Are you sure of that?

    Oscar H. Davis:

    That the Court had before it the written statements?

    William J. Brennan, Jr.:

    It had the wit — written statements of Matusow, but what about —

    Oscar H. Davis:

    Ford, yes, you’re right, Mr.

    William J. Brennan, Jr.:

    How —

    Oscar H. Davis:

    There were no —

    William J. Brennan, Jr.:

    How do you differ the statements of Ford from the statement we have here?

    Oscar H. Davis:

    The Government made no claim in those cases and I have —

    William J. Brennan, Jr.:

    So that I’m —

    Oscar H. Davis:

    Start —

    William J. Brennan, Jr.:

    The statement, was there any difference than —

    Oscar H. Davis:

    Yes.

    William J. Brennan, Jr.:

    Other than their character was?

    Oscar H. Davis:

    Yes.

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

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

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

    William J. Brennan, Jr.:

    Well, did Ford ever see the statement?

    Oscar H. Davis:

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

    William J. Brennan, Jr.:

    Well, did Ford himself make the statements that we —

    Oscar H. Davis:

    Did he?

    William J. Brennan, Jr.:

    Did Ford himself make the statements that we had before us in —

    Oscar H. Davis:

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

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

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

    Earl Warren:

    A recording, you mean mechanical recording?

    Oscar H. Davis:

    No,no I do not mean —

    Earl Warren:

    Well, what do you mean?

    Oscar H. Davis:

    I mean, that they were s — what might be said to be substantially verbatim recordings of the — by long — well, shall I say, longhand methods.

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

    William J. Brennan, Jr.:

    Now, well, what were Ford’s statements that — were they merely the F.B.I. agents setting down what, usually by telephone, foretold it?

    Oscar H. Davis:

    Well, we would not claim that if the F.B.I. —

    William J. Brennan, Jr.:

    But, weren’t they that?

    Oscar H. Davis:

    I don’t really know.

    I have never seen them, Mr. Justice Brennan.

    William J. Brennan, Jr.:

    Well —

    Oscar H. Davis:

    But what I’m saying is that the claim that the Government made in that c — we did not claim in that case that these statements are anything other than faithful recordings of what had been told.

    William J. Brennan, Jr.:

    Well, then you can’t really say —

    Oscar H. Davis:

    I can’t say from my own knowledge.

    William J. Brennan, Jr.:

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

    Oscar H. Davis:

    No, all I’m really saying is what issue was presented to the Court and I —

    William J. Brennan, Jr.:

    Are those Ford statements still with the Court?

    Oscar H. Davis:

    I don’t know, Mr. Justice.

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

    No issue was made as to that because the —

    William J. Brennan, Jr.:

    No, but I understood you to suggest the difference between this statement in this case and the Ford statement.

    Oscar H. Davis:

    I suggest that the Government did not make any claim that there was in the Ford — in the Ford situation, the claim that it makes key.

    Hugo L. Black:

    What you’re saying is that, if such — they speak without it determined.

    Hugo L. Black:

    What you’re saying — I’m trying to find out what it says.

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

    Is that what you’re saying?

    Oscar H. Davis:

    I’m saying that the only issue with respect to this — to this point was — it was assumed that these were faithful recordings, as it was assumed that they were relevant and, so, that the issue — the decision of the case was directed to that.

    Tom C. Clark:

    What you mean is the — there were substantial —

    Oscar H. Davis:

    Verbatim.

    Tom C. Clark:

    Verbatim recordings.

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

    Oscar H. Davis:

    Well, the —

    Felix Frankfurter:

    The longhand —

    Oscar H. Davis:

    There —

    Felix Frankfurter:

    The longhand dictation is no different from a short hand dictation.

    Well —

    William J. Brennan, Jr.:

    Well, were they —

    Oscar H. Davis:

    Yes.

    William J. Brennan, Jr.:

    Were they —

    Oscar H. Davis:

    We take the —

    William J. Brennan, Jr.:

    Were they longhand dictations?

    Oscar H. Davis:

    Pardon me?

    William J. Brennan, Jr.:

    Were they Longhand dictations?

    Oscar H. Davis:

    Well, I —

    William J. Brennan, Jr.:

    I would suppose you’d assume that the — what we dealt with was what we had before us.

    Oscar H. Davis:

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

    William J. Brennan, Jr.:

    Well, do you suggest that the Ford statements were longhand statements?

    Oscar H. Davis:

    I don’t know.

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

    I don’t know if —

    William J. Brennan, Jr.:

    Well, anyone’s longhands?

    Oscar H. Davis:

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

    I don’t know —

    Felix Frankfurter:

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

    Oscar H. Davis:

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

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

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

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

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

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

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

    That is very clear.

    But, the second and opposing point —

    Potter Stewart:

    Let me –let me understand that, Mr. Davis.

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

    Oscar H. Davis:

    No, sir.

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

    But, nothing is to be produced which isn’t —

    Potter Stewart:

    I understand.

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

    Oscar H. Davis:

    Well, in our view, the Jencks decision had to do with authenticated documents, authenticated documents which were really tied up with the which — the witness could be held properly responsible.

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

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

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

    But, what I’m saying now is —

    Potter Stewart:

    Well, is that distinction still obtained under the —

    Oscar H. Davis:

    Yes, that —

    Potter Stewart:

    Under the statute?

    Oscar H. Davis:

    That is right.

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

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

    Is it an authenticated statement?

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

    Oscar H. Davis:

    Does it show bias?

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

    Potter Stewart:

    Yes, but whether or not a s — I’m trying to it get clear your interpretation of the statute.

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

    Oscar H. Davis:

    That is right.

    Potter Stewart:

    Even though it may not be admissible in evidence.

    Oscar H. Davis:

    That is c — perfectly correct, Mr. Justice.

    Earl Warren:

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

    Oscar H. Davis:

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

    Earl Warren:

    Well, let me tell you — and maybe I don’t quite understand.

    Here’s what I was wondering about.

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

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

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

    He denied this was true exactly.”

    Under the Jencks statute, could they get passed?

    Oscar H. Davis:

    No, sir.

    Earl Warren:

    Could not get passed?

    Oscar H. Davis:

    No, sir.

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

    Earl Warren:

    No, it would not be admissible in evidence but it could be used — it could be used by the defense, certainly, in cross-examination.

    Oscar H. Davis:

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

    Earl Warren:

    Yes.

    Oscar H. Davis:

    If they happen to get them, which they can’t compel —

    Earl Warren:

    Yes.

    Oscar H. Davis:

    The Government to produce.

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

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

    Earl Warren:

    In other words, it’s formed in that substance.

    Oscar H. Davis:

    No,no sir.

    Oscar H. Davis:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    All types of unverified information leave an impression.

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

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

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

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

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

    We have not extended —

    Do you say they could not be added on?

    Oscar H. Davis:

    Yes, they could not be.

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

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

    Where — Is that cited in your brief?

    Oscar H. Davis:

    Page 49.

    Thank you.

    Oscar H. Davis:

    And then —

    William J. Brennan, Jr.:

    Well — excuse me.

    Oscar H. Davis:

    Pardon?

    William J. Brennan, Jr.:

    Exclusive procedure, is that to say that the only statements of satisfying one of the definitions under the statute and were producible?

    Oscar H. Davis:

    Yes, Mr. Justice.

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

    William J. Brennan, Jr.:

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

    Oscar H. Davis:

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

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

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

    In fact —

    William J. Brennan, Jr.:

    Then, how do you explain the deletion of the exclusivity language in the conference?

    Oscar H. Davis:

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

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

    Felix Frankfurter:

    There’s another star you have to clear, Mr. Davis, and that is the restriction (e), another statement —

    Oscar H. Davis:

    To (b), (c), and (d)?

    Felix Frankfurter:

    Yes.

    Oscar H. Davis:

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

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

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

    William J. Brennan, Jr.:

    You don’t.

    Oscar H. Davis:

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

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

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

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

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

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

    William J. Brennan, Jr.:

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

    Oscar H. Davis:

    That — That is right.

    William J. Brennan, Jr.:

    And, only after the witness had testified.

    Oscar H. Davis:

    That’s right.

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

    Felix Frankfurter:

    Let me ask you some more how this works.

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

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

    Oscar H. Davis:

    Yes.

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

    Felix Frankfurter:

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

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

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

    Oscar H. Davis:

    No.

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

    Felix Frankfurter:

    This is not in the presence of the jury or the Court?

    Oscar H. Davis:

    Well, I think it may be at the bench.

    Felix Frankfurter:

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

    Oscar H. Davis:

    That has not actually turned out to be the practice in —

    Felix Frankfurter:

    What is the practice?

    Oscar H. Davis:

    The practice is that a motion is made at the end of the witness’ direct testimony and the Government hands over everything which it believes to be —

    Felix Frankfurter:

    It gives it to the judge to look at?

    Oscar H. Davis:

    No, it does not, unless it has doubt, that is, if it isn’t certain —

    Felix Frankfurter:

    Well, you can’t — but I’m talking about if they’re discussing that.

    Oscar H. Davis:

    Would it — the things that it doesn’t handover, it may hand to the judge to look at, s — to see whether it falls within the Jencks statute.

    If —

    Felix Frankfurter:

    But that may require a testimony, whether it does or it doesn’t.

    Oscar H. Davis:

    It may but, in most cases, it has not because the judge has been enabled to make a determination by an inspection of the document that it is clearly not within the —

    William J. Brennan, Jr.:

    Well, as a matter of fact, Mr. Davis, if the judgment is generally of the view that they may not take testimony that, in other words —

    Oscar H. Davis:

    I —

    William J. Brennan, Jr.:

    They have the responsibility in camera to decide both issues of relevancy and issues of substantially verbatim recital?

    Oscar H. Davis:

    I can’t speak —

    Felix Frankfurter:

    When it’s about —

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

    I don’t know if any such —

    I don’t see how he can avoid doing that.

    Oscar H. Davis:

    Well —

    Felix Frankfurter:

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

    Oscar H. Davis:

    But, in most case in —

    Felix Frankfurter:

    I’ve got to believe that we have seen minutes of conversation that bore no resemblance to the real vital conversation.

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

    How do you —

    Oscar H. Davis:

    Occasionally, you may.

    Felix Frankfurter:

    How experience tell from the doctrine whether that’s the way the fellow called?

    Oscar H. Davis:

    Well, Congress has laid down some guide posts.

    It has given the words of the statute —

    William J. Brennan, Jr.:

    Well, before you get what he’d say, that’s in this very case.

    Oscar H. Davis:

    Yes.

    William J. Brennan, Jr.:

    The Court of Appeals itself determined, merely form the examination of the document, did it not?

    Oscar H. Davis:

    Yes.

    William J. Brennan, Jr.:

    And, I assume that it must have done this, at least.

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

    Oscar H. Davis:

    No, sir.

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

    Felix Frankfurter:

    Well, you can tell if he so appropriately characterized it.

    Oscar H. Davis:

    I’m —

    Felix Frankfurter:

    What I am saying —

    Oscar H. Davis:

    I’m talking about this document.

    Felix Frankfurter:

    I had an-hour’s talk with him.

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

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

    Oscar H. Davis:

    Well, there are many —

    Felix Frankfurter:

    That’s the question they’ve raised and knowing that wouldn’t make it that way.

    Oscar H. Davis:

    That’s right, and that’s why Congress provided that it should be, not only a substantially verbatim recital, but recorded it contemporaneously.

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

    Felix Frankfurter:

    But you can’t come back with an argument.

    Oscar H. Davis:

    But you can sometimes tell that —

    Felix Frankfurter:

    I’d so and —

    Oscar H. Davis:

    You can’t invariably tell it but, I would suggest —

    Felix Frankfurter:

    Or I was addressing myself to the suggestion that I should be concise.

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

    He couldn’t possibly —

    Oscar H. Davis:

    No.

    Felix Frankfurter:

    In many other cases —

    Oscar H. Davis:

    I don’t know what the practice has been, but I do know this.

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

    William J. Brennan, Jr.:

    Now —

    Oscar H. Davis:

    An internal inspection —

    William J. Brennan, Jr.:

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

    Isn’t in the — in fact, what he said?

    Oscar H. Davis:

    Yes.

    William J. Brennan, Jr.:

    And, yet, there was no examination or cross-examination of that statement.

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

    Oscar H. Davis:

    No, sir.

    William J. Brennan, Jr.:

    Well, now, how can the Court of Appeals accept as the — takes his bare statement that all that that memorandum is, is a bear summary of what the witness told him.

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

    Oscar H. Davis:

    I think there are three things to be said about this, Mr. Justice Brennan, and I’ll try to explain each of them.

    First, this is a unique situation.

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

    William J. Brennan, Jr.:

    Well —

    Oscar H. Davis:

    Which was, later, disapproved.

    William J. Brennan, Jr.:

    Don’t — I’m not so concerned with whether this is done by the Court of Appeals or the district court for the purposes of this question.

    William J. Brennan, Jr.:

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

    Oscar H. Davis:

    They were not asked to — to do that.

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

    William J. Brennan, Jr.:

    How could — how could the other party deny it there?

    Oscar H. Davis:

    Belavan was — was available to them.

    They could question him.

    They could ask that he be called.

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

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

    William J. Brennan, Jr.:

    Well —

    Oscar H. Davis:

    — a —

    William J. Brennan, Jr.:

    — let’s get a preliminary to clear it up, if you will, for me.

    How would they know what to do about this statement when they never saw it?

    How would they know what it was or how they could attack it or, perhaps, be satisfied that they shouldn’t attempt to attack it when they never say it?

    Oscar H. Davis:

    Well, that’s inevitable, Mr.– Mr. Justice Brennan.

    Congress has provided that they shouldn’t see statements of a certain kind.

    In fact, under certain — under judicial rules, when you ask for discovery, the courts decide that you can’t see statements of certain kinds.

    On the other hand, they have a right to see statements of other kinds.

    If you allow them to see it, they are — you’re — they are getting precisely the advantage that Congress has said they are not allowed to have.

    Now, the only way, as Judge Learned Hand said, to resolve this situation is to have — unless you have the prosecutor do it on his own, is to have the judge do it, informed as best he may be by inspection, by whatever evidence is available, and that is the procedure which Congress adopted in Jencks.

    William J. Brennan, Jr.:

    Well, now, Congress adopted that as to the — expressly on the issue of relevancy to put it, that is, where the Government says that —

    Oscar H. Davis:

    Yes.

    William J. Brennan, Jr.:

    — it’s irrelevant material on the statement, the Government concedes that parts of the statement should be turned over and the Congress has said, “Well, the Court shall, in camera, determine whether there are irrelevant parts and turn over only the relevant material.”

    But, has the Congress has explicitly stated that the Court shall, in camera, determine whether or not a given report is a substantially verbatim recital.

    Oscar H. Davis:

    No, Mr. Justice.

    But, we think that it follows by very clear analogy because Congress has said that, if it isn’t authenticated statement, it is not to be handed over.

    As I mentioned before, someone has to make that decision.

    William J. Brennan, Jr.:

    Yes, but the difficulty — you might have told me —

    Oscar H. Davis:

    Yes.

    William J. Brennan, Jr.:

    — Mr. Davis, the — among these authenticated statements is a substantially verbatim recital.

    Oscar H. Davis:

    That’s right.

    William J. Brennan, Jr.:

    And I — You’ve already agreed with me that, whether something is or not, it might be a question —

    Oscar H. Davis:

    Might in certain cases, yes.

    William J. Brennan, Jr.:

    — might be controverted.

    Oscar H. Davis:

    Yes, in certain cases.

    William J. Brennan, Jr.:

    And, what I don’t quite understand, in response both to me and Justice Frankfurter is why you suggest this should be the — and in camera, determination by — by the trial judge.

    Oscar H. Davis:

    Because, if it isn’t, then the defendant will get precisely the statement which Congress said he shall not get.

    William J. Brennan, Jr.:

    Because he may see it —

    Felix Frankfurter:

    No, that is not a difficulty.

    Oscar H. Davis:

    That’s right.

    He will —

    Felix Frankfurter:

    (Voice Overlap) —

    Oscar H. Davis:

    — see everything.

    He see — he will — if Congress has said he shall not get an unauthenticated statement and you let him always look at it to see whether it is authenticated or unauthenticated, he has seen what Congress has said he shall see and he, of course, would be able to use it because it will be in the mind of the defense counsel and the defendant.

    And there — if I may adopt Mr. Justice Frankfurter’s comment, the statute would not have any — any purpose.

    William J. Brennan, Jr.:

    Well, then, that — that’s to suggest then, at the level of trial judge, the Court of Appeals and, I gather, also in this Court, this whole determination is to be made, the determination whether it’s authenticated in the sense that it’s a substantially verbatim recital, by — in the first instance, the trial judge, he decides against the defendant.

    The Court of Appeals may reach the same conclusion without the defendant having any opportunity to be heard on the question of whether it is or isn’t substantial.

    Oscar H. Davis:

    Well, he has certain opportunity.

    It’s a limited opportunity.

    He could —

    William J. Brennan, Jr.:

    Well, what is it?

    I don’t —

    Oscar H. Davis:

    He could —

    William J. Brennan, Jr.:

    What’s the opportunity?

    Oscar H. Davis:

    For instance, he can say an authenticated statement is a statement which does not contain explicit expressions of the interviewer.

    If you — if Your Honor will turn to page 37, where we quote what Judge Moore said in the Anderson —

    William J. Brennan, Jr.:

    Yes.

    Oscar H. Davis:

    — case prior to the Jencks statute and which Congress explicitly adopted, the Conference Committee report of the House manager said, “We believe that Judge Moore’s statement in the Anderson case is the statement that should be followed here.”

    William J. Brennan, Jr.:

    No, but what I’m trying to get to is, by and large, the — these determinations — this determination, as to a particular statement, whether this is substantially verbatim recital, is to be made without hearing the defense on that issue, isn’t it?

    Oscar H. Davis:

    Well —

    William J. Brennan, Jr.:

    And, it’s to be made in the trial court and the Court of Appeals and in this Court.

    And, my question is if that’s the fact, isn’t there a constitutional question raised under the statute?

    Oscar H. Davis:

    I —

    Earl Warren:

    You may answer that in the morning.