Needelman v. United States

PETITIONER:Needelman
RESPONDENT:United States
LOCATION:Federal Reformatory for Women in West Virginia

DOCKET NO.: 278
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 362 US 600 (1960)
ARGUED: Apr 25, 1960 / Apr 26, 1960
DECIDED: May 16, 1960

Facts of the case

Question

  • Oral Argument – April 25, 1960
  • Audio Transcription for Oral Argument – April 25, 1960 in Needelman v. United States

    Audio Transcription for Oral Argument – April 26, 1960 in Needelman v. United States

    Oscar H. Davis:

    I came from the bench of the argument yesterday.

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

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

    So they were out about an hour and 40 minutes.

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

    He did say that.

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

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

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

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

    It has not been brought to the Court.

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

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

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

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

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

    Potter Stewart:

    The motion itself does not appear in the record.

    Oscar H. Davis:

    The motion itself does not appear at all.

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

    Earl Warren:

    Mr. Davis —

    Oscar H. Davis:

    And —

    Earl Warren:

    — and also, it does not appear in the full record.

    Oscar H. Davis:

    It does not appear anywhere.

    Earl Warren:

    Yes.

    I think it was not taken down by the —

    Yes.

    Oscar H. Davis:

    — by the stenographer at the trial.

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

    I have the agent’s own copy.

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

    Oscar H. Davis:

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

    It’s 23 closely typed pages, single space.

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

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

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

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

    Potter Stewart:

    Is that an excerpt only from that that appears at the —

    Oscar H. Davis:

    Yes.

    Potter Stewart:

    — printed record beginning on page 138?

    Oscar H. Davis:

    Yes, Mr. Justice.

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

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

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

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

    (Inaudible)

    Oscar H. Davis:

    Certainly, Mr. Justice.

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

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

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

    Some of these witnesses were not called at the trial.

    William J. Brennan, Jr.:

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

    Oscar H. Davis:

    That was an important factor in the trial.

    William J. Brennan, Jr.:

    Well, I thought —

    Oscar H. Davis:

    I do not think it was crucial.

    William J. Brennan, Jr.:

    I see.

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

    Oscar H. Davis:

    That’s right.

    Dr. Needelman did deny that he had said that.

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

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

    William J. Brennan, Jr.:

    Yes, so that on — on the question — as I’m looking at page 139, there’s a statement in the report from the original report that at that point, Dr. Needelman voluntarily and spontaneously stated —

    Oscar H. Davis:

    Yes.

    William J. Brennan, Jr.:

    — that he had left those prescriptions with those addicts when he left for Europe.

    Oscar H. Davis:

    That’s right.

    William J. Brennan, Jr.:

    Now, this Dr. Needelman denied, didn’t he?

    Oscar H. Davis:

    That is right.

    William J. Brennan, Jr.:

    And that became really a crucial factor.

    Oscar H. Davis:

    That was an important factor.

    William J. Brennan, Jr.:

    Crucial (Voice Overlap) —

    Oscar H. Davis:

    I — I don’t know if it was crucial —

    William J. Brennan, Jr.:

    — crucial at least in court.

    Oscar H. Davis:

    — but it was important.

    Certainly, that’s true.

    William J. Brennan, Jr.:

    Now, is there anything in the original report to indicate that this is a summary of the agent’s notes?

    Oscar H. Davis:

    No, sir, no, sir.

    William J. Brennan, Jr.:

    We can’t tell that at all.

    Oscar H. Davis:

    You can’t tell that from the (Voice Overlap) —

    William J. Brennan, Jr.:

    And we don’t know then whether there was recorded by the agent at the time of this conversation with Dr. Needelman, the substance of the conversation, we don’t know that?

    Oscar H. Davis:

    No, the Court doesn’t know — doesn’t know that.

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

    William J. Brennan, Jr.:

    Yes.

    Oscar H. Davis:

    It was a mistrial.

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

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

    William J. Brennan, Jr.:

    Is there anything in the original report which indicates the lapse of time from the date of the interview with Dr. Needelman where he made the submission according to Agent Rudd —

    Oscar H. Davis:

    Yes.

    William J. Brennan, Jr.:

    — and the preparation of the report?

    Oscar H. Davis:

    Well, the report is dated October 31st because that is the day it was transmitted.

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

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

    Oscar H. Davis:

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

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

    William J. Brennan, Jr.:

    Do we know how long this crucial interview, I used the word “crucial” —

    Oscar H. Davis:

    Yes.

    Took place?

    William J. Brennan, Jr.:

    Took place?

    How long it lasted?

    Oscar H. Davis:

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

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

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

    William J. Brennan, Jr.:

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

    Oscar H. Davis:

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

    I —

    Felix Frankfurter:

    Before you — I — finish your answer.

    Oscar H. Davis:

    I — I was about to go on with my argument.

    Felix Frankfurter:

    Yes.

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

    Did that occur at the first trial?

    Oscar H. Davis:

    Was — the first trial was on a conspiracy indictment only, Mr. Justice, and I do not know.

    I do not — it was not on the substantive —

    Felix Frankfurter:

    I understand but couldn’t it be relevant to that, too?

    Oscar H. Davis:

    Yes, it — it might be.

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

    Felix Frankfurter:

    I understand.

    Oscar H. Davis:

    I do not know what occurred at the first trial.

    Felix Frankfurter:

    Your answer is you don’t.

    Oscar H. Davis:

    I don’t know.

    William J. Brennan, Jr.:

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

    Oscar H. Davis:

    No.

    I think it was before a different judge.

    Oscar H. Davis:

    This conspiracy indictment charged in this trial was of course.

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

    William J. Brennan, Jr.:

    Well, I’m — I’m referring to the trial that Mr. Justice Frankfurter gave.

    Oscar H. Davis:

    No, that was before another judge.

    William J. Brennan, Jr.:

    Because it — it might — might be significant as to this — what seems to me a rather a little discussion on this motion comes, the —

    Oscar H. Davis:

    Well —

    William J. Brennan, Jr.:

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

    Oscar H. Davis:

    That might be true.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    He has to communicate them to someone else.

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

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

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

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

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

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

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

    Oscar H. Davis:

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

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

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

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

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

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

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

    William J. Brennan, Jr.:

    I would seem — as I recall — am I right?

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

    Oscar H. Davis:

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

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

    They didn’t — any of them referred to that.

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

    And that no one wanted to do away with it.

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

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

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

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

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

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

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

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

    That is not so.

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

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

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

    It can — it can depend upon the situation.

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

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

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

    Oscar H. Davis:

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

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

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

    There’s a whole world of difference between that.

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

    Let me try to give an example to the Court.

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

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

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

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

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

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

    That’s always been my practice.”

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

    It just says you saw Joe Smith here.

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

    How do you know it’s your practice?”

    And the — and the witness says, “That’s always been my practice.

    I have that kind of a memory.”

    And defense counsel says, “Can you prove it?

    Can you bring in your other notes?”

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

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

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

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

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

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

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

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

    William J. Brennan, Jr.:

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

    Oscar H. Davis:

    (Voice Overlap) —

    William J. Brennan, Jr.:

    — in his file.

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

    Oscar H. Davis:

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

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

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

    If he gets —

    William J. Brennan, Jr.:

    Yes, but suppose — I notice you have them on that envelope (Voice Overlap) —

    Oscar H. Davis:

    Because we asked the agent for them.

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

    And other things, probably.

    William J. Brennan, Jr.:

    And forwarded them and merely said, “My notes are in this envelop.”

    Oscar H. Davis:

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

    William J. Brennan, Jr.:

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

    It would have been producible, would it not?

    Oscar H. Davis:

    Yes, yes.

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

    William J. Brennan, Jr.:

    We don’t know whether the fact is or not that that package was transmitted to his superior, do we?

    Oscar H. Davis:

    Well, you don’t know that but we have investigated and I can assure the Court to the best of our understanding.

    William J. Brennan, Jr.:

    It was not.

    Oscar H. Davis:

    The agent has said it was not transmitted.

    He has written us to (Voice Overlap) —

    William J. Brennan, Jr.:

    Yes, you told us that.

    Yes.

    Oscar H. Davis:

    Yes, that — that he — he has not.

    I would not make the argument that — that if — if we didn’t know this and —

    William J. Brennan, Jr.:

    Yes.

    Oscar H. Davis:

    — and —

    Felix Frankfurter:

    No inquiry was made of the witness —

    Oscar H. Davis:

    No.

    Felix Frankfurter:

    — during — on — on the stand.

    Oscar H. Davis:

    That’s right.

    No inquiry was made of the witness on the stand.

    That could have been.

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

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

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

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

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

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

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

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

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

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

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

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

    William J. Brennan, Jr.:

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

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

    Oscar H. Davis:

    Well, that’s right.

    William J. Brennan, Jr.:

    What do you mean by that?

    Oscar H. Davis:

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

    William J. Brennan, Jr.:

    But we’re — we’re — I thought this argument was on the premise that this is something not discoverable under terms of the Jencks Act.

    Oscar H. Davis:

    Well, that’s right.

    William J. Brennan, Jr.:

    That they are notes which were used admittedly by the witness —

    Oscar H. Davis:

    To refresh his recollection.

    William J. Brennan, Jr.:

    — to refresh his recollection before he took the stand.

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

    Oscar H. Davis:

    That —

    William J. Brennan, Jr.:

    — under the Goldman rule within the discretion of the trial judge —

    Oscar H. Davis:

    Because we do not —

    William J. Brennan, Jr.:

    — except as the Goldman rule may have been affected by what I just read to you.

    Oscar H. Davis:

    No.

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

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

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

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

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

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

    William J. Brennan, Jr.:

    That is unless you said contrary here at Jencks.

    Oscar H. Davis:

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

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

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

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

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

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

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

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

    The Jencks Act did not compel production.

    Then, you have the question of the discretion.

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

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

    William J. Brennan, Jr.:

    Whether in — when Goldman tried, had there been any development of requirements of this nature before the trial judge call upon exercise of discretion?

    Oscar H. Davis:

    Well, I think some of the — the cases don’t say it explicitly but they go into the question of — of the reasons why the production should be allowed or not.

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

    William J. Brennan, Jr.:

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

    He never looked at it.

    Oscar H. Davis:

    He could have been asked to look at, as it has been done in other cases.

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

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

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

    Oscar H. Davis:

    I’ll hand them back.”

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

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

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

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

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

    It should be admitted from the record.

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

    William J. Brennan, Jr.:

    I suppose you could carry that.

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

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

    Oscar H. Davis:

    Well, the defense counsel could then ask.

    William J. Brennan, Jr.:

    Well, I gather, you’re carrying this to the extent of saying that was up to the defense counsel (Voice Overlap) —

    Oscar H. Davis:

    They took — they took to the appeal — the appeal to the Fifth Circuit and they took appeal on this issue.

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

    Felix Frankfurter:

    Well —

    Oscar H. Davis:

    Now —

    Felix Frankfurter:

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

    Oscar H. Davis:

    Well, that’s right.

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

    William J. Brennan, Jr.:

    Well, the — the thing that puzzles me about this, Mr. Davis, is that the action on the motion was taken down stenographically transcribed because it’s in the record.

    Oscar H. Davis:

    Well —

    William J. Brennan, Jr.:

    Nothing that preceded the Court’s action appears.

    Oscar H. Davis:

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

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

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

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

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

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

    Felix Frankfurter:

    But you used the word “burden” as though this is a heavy load —

    Oscar H. Davis:

    No.

    Felix Frankfurter:

    — that somebody has to carry.

    Oscar H. Davis:

    I — I can —

    Felix Frankfurter:

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

    That’s all that’s required.

    Oscar H. Davis:

    That is right.

    Felix Frankfurter:

    Burdensome as though you put a ton on it.

    Oscar H. Davis:

    Well, I didn’t mean that because it is very difficult.

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

    All these things together —

    Felix Frankfurter:

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

    Oscar H. Davis:

    That — that is right.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    Some of them may make full notes.

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

    They just want to remind themselves.

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

    Earl Warren:

    Mr. Warren.

    Herbert A. Warren, Jr.:

    Mr. Chief Justice, may it please the Court.

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

    That’s my understanding —

    Felix Frankfurter:

    But the case — the — the sufficiency of the evidence to go to the jury, was that a claim made here and asking for review?

    Herbert A. Warren, Jr.:

    Not in this Court.

    No, sir.

    Felix Frankfurter:

    I mean it wasn’t even presented.

    It wasn’t merely — the Court restricted it.

    But I — let’s look at it.

    The petition was granted without restriction.

    Herbert A. Warren, Jr.:

    That’s right, but there were no questions posed as to the sufficiency of the evidence.

    Now, it’s my —

    William J. Brennan, Jr.:

    Mr. Warren, now, was the first trial before another judge?

    Herbert A. Warren, Jr.:

    It’s my understanding that it was before the same judge, Judge Choate.

    William J. Brennan, Jr.:

    It was the same judge.

    Herbert A. Warren, Jr.:

    Yes, sir.

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

    Where does that appear?

    Herbert A. Warren, Jr.:

    That appears on page 8 of the record, sir.

    Potter Stewart:

    That — now, that — that motion which appears on page 8 is not the one that was later already denied by — page 193, whatever it was.

    Herbert A. Warren, Jr.:

    No, sir.

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

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

    Potter Stewart:

    Well, I — I don’t understood yesterday and perhaps I misunderstood it that this motion, this written formal motion appearing on page 8 in the top of page 9 of the — of the record was denied and —

    Herbert A. Warren, Jr.:

    Yes.

    Potter Stewart:

    — and that it’s — there’s no claim of error in the denial of this particular motion.

    Am I mistaken about this?

    Herbert A. Warren, Jr.:

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

    What this look —

    Felix Frankfurter:

    (Voice Overlap) —

    Excuse me.

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

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

    Herbert A. Warren, Jr.:

    They come in the 93 for —

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

    Herbert A. Warren, Jr.:

    Yes, sir.

    And with one of those off the record discussions that the — I’d like to have the record show that this motion was renewed.

    Herbert A. Warren, Jr.:

    That tried after what (Voice Overlap) —

    That’s about what it looks like, didn’t it?

    Herbert A. Warren, Jr.:

    I believe that is a —

    Not much more than that.

    Herbert A. Warren, Jr.:

    I believe that is a fair statement.

    Yes, sir.

    Felix Frankfurter:

    Mr. Warren, I don’t — I don’t think I quite understood or at least appreciate you answer to Justice Stewart’s question.

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

    Herbert A. Warren, Jr.:

    Yes, sir.

    Felix Frankfurter:

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

    Herbert A. Warren, Jr.:

    It is my assumption that and I can say from speaking to trial counsel that the motion was renewed.

    It is not reflected in the —

    Felix Frankfurter:

    Well, what — I don’t understand that.

    When you say the motion was renewed, you mean the motion that was formally — that was denied the record — the recording of denial of which on page 9 and 10 was renewed?

    Herbert A. Warren, Jr.:

    Renewed as far as production of the contemporaneous notes.

    Yes, sir.

    Felix Frankfurter:

    Well, but there is no reference in that.

    It seems to me a totally different transaction in 88.

    There was testimony about these notes and then there was this recess, and I will deny the request for the notes.

    Herbert A. Warren, Jr.:

    Yes, sir.

    Felix Frankfurter:

    Are you now saying that the motion, the pretrial motion on page 9 was — were those notes?

    Herbert A. Warren, Jr.:

    Yes, sir.

    Did they —

    Herbert A. Warren, Jr.:

    They are the same notes, the notes that had been referred to in the first case and where again, the subject of the discussion in the second case.

    Felix Frankfurter:

    Well, how do we know that?

    Is that we — have we got — is the motion here identifying what was the — the motion, the order on motion is for the production of documents.

    Herbert A. Warren, Jr.:

    Yes, sir.

    Felix Frankfurter:

    Now, what is then in this record that would enable me to see — to say that the motion for production of documents was the motion for the production of these notes?

    Herbert A. Warren, Jr.:

    The statement in the motion for — for production of documents.

    Potter Stewart:

    Is that on page 8 you’re talking about the Court, on the top of page 8?

    Herbert A. Warren, Jr.:

    On page 8.

    Yes, sir.

    The motion specifically says particularly the — the documents which are requested particularly, the contemporaneous notes made by the government witness Kenneth Rudd who has previously testified in said cause and who is a material witness for the Government in said cause made by the said Kenneth Rudd during his investigation in preparation for trial of said cause and which said contemporaneous notes have already been referred to by the said Rudd in the previous trial of said cause.

    Felix Frankfurter:

    Well, then, this mean that — what I asked Mr. Davis, that this — the production of these notes had emerged at the first trial.

    Herbert A. Warren, Jr.:

    There had been discussion over that first trial, as shown by this motion.

    Felix Frankfurter:

    So that, that makes all the most significant to me at least, that in examining Rudd about these notes, no questions were asked as to the nature of the notes as to the bearing of inconsistency, as to the potential conflict and above all, in asking the Court to look at them —

    Herbert A. Warren, Jr.:

    Yes, sir.

    Felix Frankfurter:

    Is that right?

    Herbert A. Warren, Jr.:

    That is correct.

    But I will say this, that it’s our position that it’s not necessary for the defendant to —

    Felix Frankfurter:

    I understand that, but I just wanted to make sure what it is that was put before the trial judge on which he ruled and on the basis of which the Court of Appeals decided what it decided.

    Herbert A. Warren, Jr.:

    Yes, sir.

    Felix Frankfurter:

    And the basis on which the case comes here.

    William J. Brennan, Jr.:

    I suppose, Mr. Warren, this might also have happened, prosecutor, defense counsel and Judge Choate, that he did try the first —

    Herbert A. Warren, Jr.:

    Yes, indeed, sir.

    William J. Brennan, Jr.:

    — case.

    Had been all through this on a go-around for all that appears, everything that now seems missing here may all have been developed in the first trial and Judge Choate had refused to turnover the notes and they just persisted in that.

    Herbert A. Warren, Jr.:

    That’s correct, sir.

    Felix Frankfurter:

    And was there anything to prevent trial counsel from having it recorded that they asked Judge Choate to look at those?

    Herbert A. Warren, Jr.:

    No, sir.

    Felix Frankfurter:

    And nothing appears that such a request was made?

    Herbert A. Warren, Jr.:

    No, sir.

    Tom C. Clark:

    (Voice Overlap) —

    Felix Frankfurter:

    You mean yes, they’re not (Inaudible)

    Nothing appears —

    Herbert A. Warren, Jr.:

    Nothing appears in the record.

    Felix Frankfurter:

    — that such a request was maybe either at the first trial or in the second?

    Herbert A. Warren, Jr.:

    That’s right, sir.

    Tom C. Clark:

    You just have said that your request on 93 referred back to the motion.

    Herbert A. Warren, Jr.:

    I tried.

    I assumed and I think —

    Tom C. Clark:

    (Voice Overlap) —

    Herbert A. Warren, Jr.:

    — I fairly saw that when the judge says, “I will deny the request for the notes,” that there must have been a request for the notes.

    Without asking to go off the record, is it fancible to suppose in the proportion where there’s — 93, that counsel said, “Your Honor, may the record show that the motion that I made before trial for the production of these notes which you deny was new to the trial and is likewise denies the trial”?

    Herbert A. Warren, Jr.:

    I don’t think it’s fancible in the least, Mr. Justice.

    You don’t think it’s fancible at all.

    Herbert A. Warren, Jr.:

    No, sir.

    As to the case report, which was filed here by the Government, I think Mr. Davis made a statement which points out the significance of that report very clearly.

    He described it as what the Government could rest its case upon.

    Now, this report was made some six weeks after the interview with Dr. Needelman.

    It was made some two weeks after the indictment had already been returned in the first case.

    And I think it’s obvious from reading it that the Government was preparing their case for trial and there can a world of difference between what the witnesses were testified to and the recording of the events made as those events actually happened.

    Felix Frankfurter:

    You said at the time you started the investigation of this case, is there anything in the record to indicate that he made notes that this doesn’t refer to notes made weeks before he ever talked — the day before he ever talked about the Needelman.

    And that he talked to other people who then led him for — talk with whom, led in to Dr. Needelman.

    Is there anything in the record to — he said lied on that?

    Herbert A. Warren, Jr.:

    No, sir.

    The Government seems to try to make their distinction on whether or not the notes were communicated, and I submit that the communication adds nothing to the value of the notes, the primary point considered by this Court in the Jencks case and I think the primary point of the statute is the fact that the witness himself has, at a time, when his memory was fresh, made a notation as to what occurred.

    And if he just puts that in his pocket and never looks at it again until he takes the witness stand, it still just as valuable to the defense and cross-examination and just as valuable in ascertaining the truth of what actually happened at the time that he made that recording.

    Now, this Court in Jencks, of course, over turn the idea that we — that the defense counsel had to show any inconsistency between the prior statement of the witness as a prerequisite to having it produced.

    And I think the contention of the Government now to place upon the defense, the burden, if you wish to use that word, the burden of showing that the notes would be intelligible would fall within the same category.

    It’s our position that the Jencks’ case holds very clearly and very precisely that the only thing which is necessary to be shown is that the witness has made a prior statement relative to his testimony.

    And when that appears, everything which is necessary for production purposes has been shown.

    Herbert A. Warren, Jr.:

    This Court in Jencks referred back to the decision in the Gordon case and said for production purposes, it need only appear that the evidence is relevant, competent and outside any exclusionary rule.

    When it appears that the witness who is testifying has made a prior statement concerning his present testimony, certainly his prior statement is relevant.

    He made himself so it’s competent.

    He’s already testified so there is no exclusionary rule or evidentiary privilege which (Voice Overlap) —

    Felix Frankfurter:

    The Jencks — the Jencks case was a confrontation of present testimony of a witness reported to a government agent —

    Herbert A. Warren, Jr.:

    Right, sir.

    Felix Frankfurter:

    — as against a report made by government agent of a prior statement by that witness, is that this case?

    Herbert A. Warren, Jr.:

    No, sir.

    But the same principle has appeared because it is the fact that the witness has made a prior statement.

    In the Jencks case, it was a witness who had made a statement to a government agent, but it was his statement, and the Court said it was his statement could probably be used to impeach him and therefore, should be produced.

    The same —

    Felix Frankfurter:

    And you say it’s irrelevant that the Government now offers a witness who says — now offers as a government official who says, the witness made this and this statement to me, and that same government official previously made a report of the same statement by that witness.

    Do you think that (Inaudible)?

    Those are quite unimportant facts in the determination of the decision of the Jencks case fully apart from the fact of what the Jencks statute did to the Jencks case.

    Herbert A. Warren, Jr.:

    I think the primary consideration is that you can impeach the government witness but only by his own statement.

    Now, if it’s a witness who is not a government agent, the report is in the hands of the Government.

    They can claim an exclusionary privilege there.

    Jencks says that that exclusionary privilege does not apply where the witness has testified and it’s his report producing.

    So you can impeach him with it.

    Here, you have one step eliminated because the agent is the witness himself, for the witness is the agent.

    There is already the exclusionary privilege there but once he testifies, then his prior statement no longer has that exclusionary privilege, it is just as competent to impeach him as was the reports of the —

    Felix Frankfurter:

    But you’re —

    Herbert A. Warren, Jr.:

    — witnesses in the Jencks case.

    Felix Frankfurter:

    — but you are saying that as a matter of law, as a matter of law, if I testified in something subject to cross-examination and it appears that I scribbled some notes which I looked at before I testified that as a matter of law, without law, just that fact, requires the trial court to make me produce my notes —

    Herbert A. Warren, Jr.:

    Yes.

    Felix Frankfurter:

    — is that what you’re saying?

    Herbert A. Warren, Jr.:

    Absolutely.

    Yes, sir.

    And I think that is the basic calling of the Jencks case in my — in my opinion.

    Felix Frankfurter:

    Well, but the Jencks case had taught me different situation.

    Felix Frankfurter:

    It’s the responsibility of the Government in vouching for a witness who now makes one report of his talk with the — with the person and previously had filed another report of his (Inaudible).

    And those things seem to you immaterial.

    Herbert A. Warren, Jr.:

    Perhaps, I misunderstood you question then, because in our situation where the government agent is the witness, the Government is certainly vouching for his testimony and if he has notes in the possession of the agent, they are just as much notes of the United States as if they have been put in some other file.

    Felix Frankfurter:

    In the first place, I don’t think that’s so.

    But in the second place, you didn’t ask for them.

    Herbert A. Warren, Jr.:

    We asked —

    Felix Frankfurter:

    You didn’t ask for the judge to pass on whether or not, in the interest of general fairness, there is any reason for having the witness who is also a person, a private person producing private jotting, that I remember this day because it was my son’s birthday.

    Herbert A. Warren, Jr.:

    And it’s our position that all we need to show is that they — the notes are relevant to his prior testimony and once that it —

    Felix Frankfurter:

    But you didn’t show that.

    You simply — you didn’t show that.

    You didn’t ask the judge to determine that.

    You simply prove that at the beginning of his investigation, he made some notes.

    Herbert A. Warren, Jr.:

    Right, sir.

    Felix Frankfurter:

    And you’re assuming everything when you say that they’re relevant to this.

    You draw that relevance merely from the fact that he made jottings to — not — not just memory.

    Herbert A. Warren, Jr.:

    That’s right.

    He made notes during his investigation then he testified as to his investigation.

    Now, if the Government wants to claim —

    Felix Frankfurter:

    We don’t have a date what — made the notes about afford to had anything to do with what he testified.

    And you didn’t —

    Herbert A. Warren, Jr.:

    But we —

    Felix Frankfurter:

    — ask the Court to examine that and make his own judgment about it.

    Herbert A. Warren, Jr.:

    Right, sir.

    We think that after we had showed just what we had shown, there was then the burden of the Government to assert that it does contain a relevant matter and at that point, then the judge steps in under the statute and makes the determination as to what portions are relevant and should be turned over and what portions are not.

    Now, as to some of the cases, as to the procedure followed by defense counsel in requesting production of the notes, I’ve already mentioned the Jencks case.

    In that case, the defense attorney moved for an order directing an inspection of reports dealing with meetings about which he — the witness had testified.

    The trial judge denied the motion.

    There was nothing further done by defense counsel in any request that the judge examined the notes in camera or that the notes be made a part of the record.

    In the Holmes versus United States case in our brief in the Fourth Circuit, the agent testified as to his investigation, the defense then demanded production of the memoranda and report prepared during his investigation and recording its result.

    The file was tendered to the trial judge.

    Herbert A. Warren, Jr.:

    The trial judge declined to read the reports, place a responsibility upon the FBI agents and the prosecution to determine which reports should be delivered.

    The Fourth Circuit said that that was error to do that, that the statute places an affirmative duty upon the trial judge himself to make the determination once the Government asserts that the notes or the document does contain any irrelevant matter.

    In the Bradford case of the Ninth Circuit, it’s cited in our brief, the examination by defense counsel of the government agent was very similar to the examination in this case.

    He asked him, “Did you make notes?”

    And in fact, he said he did.

    “You refresh your recollection with those notes?”

    “Yes.”

    Counsel then requested production of the notes.

    The trial judge denied the motion for production.

    The trial counsel again said that he wanted the notes produced.

    The Court then, on its own volition, examined the notes, determined that they should not be handed over, handed them back to the witness.

    They were not made apart of the record in the case.

    There was no request by the trial counsel that they be made a part of the record of the case and the Court of Appeals said that appellant’s counsel in this case did nothing less in the trial counsel in the Jencks and reversed the trial court because of its action in that regard.

    Now, we say that we’ve done everything necessary in this case to get production of the notes.

    If the Government wanted it to assert that they did contain irrelevant matter, they should’ve done so, then the judge would step in and make the determination.

    Could I ask you a question?

    Supposing the judge had said, “Hand me these notes,” to the United States Attorney and he take and look at them and said no motions denied.

    What would have been your position then?

    Herbert A. Warren, Jr.:

    The same as it is now.

    He’d still be entitled to this?

    Herbert A. Warren, Jr.:

    Yes, sir.

    As far as Goldman is concerned, perhaps it still has some validity where the document is not fairly attributable to the witness himself.

    If it is, that the witness is using a summary of someone else to refresh his recollection, then perhaps the trial judge, in his discretion, can require the production.

    But where the document is the witnesses’ own document, Goldman can have no further application because if it is his own document, then it is producible.

    I’d like to close with just an adoption, if I may, of the words of Mr. Davis which he used before this Court in argument on Lev versus United States and other connected cases.

    In arguing with reference to summaries made by agents of witnesses’ testimony, it was suggesting that counsel could call the agent himself and cross-examine him.

    And in response to a question to Mr. Justice Black, that if the agent denied the purpose contained in the summary, then Mr. Davis made the statement then the memoranda could be produced since it was the agent’s own document and would be producible.

    And I think that very well sums up the entire law and reason applied to this case and to this situation.

    The notes for Rudd’s own document and since it was his own document, it would be producible.

    Thank you.

    Earl Warren:

    We may recess.