Pittsburgh Plate Glass Company v. United States

PETITIONER:Pittsburgh Plate Glass Company
RESPONDENT:United States
LOCATION:U.S. District Court Southern District of California

DOCKET NO.: 489
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Fourth Circuit

CITATION: 360 US 395 (1959)
ARGUED: Apr 28, 1959 / Apr 29, 1959
DECIDED: Jun 22, 1959

Facts of the case

Question

  • Oral Argument – April 29, 1959
  • Audio Transcription for Oral Argument – April 29, 1959 in Pittsburgh Plate Glass Company v. United States

    Audio Transcription for Oral Argument – April 28, 1959 in Pittsburgh Plate Glass Company v. United States

    Earl Warren:

    Number 489, Pittsburgh Plate Glass Company, Petitioner, versus United States of America.

    Mr. Hazard, you may proceed.

    Leland Hazard:

    Mr. Chief Justice and may it please the Court.

    This is an antitrust case in which the petitioner, Pittsburgh Plate Glass Company, and six other defendants and two individuals were convicted of a price-fixing conspiracy.

    The conviction was sustained in the Court of Appeals for the Fourth Circuit and petition for writ of certiorari was limited to the — granted and limited to the question whether a grand jury testimony may be a prior statement within the meaning of Jencks versus United States.

    I’ll state just enough of the facts to eliminate that issue.

    A trade association known as the Mirror Manufacturers Association of which Pittsburgh Plate Glass Company, if I may, I’ll refer to that company as PPG hereafter, PPG was not a member of the trade association.

    It held its 1954 annual meeting at Asheville, North Carolina.

    A representative of PPG, W. A. Gordon, a manager of Plate Glass Sales, the only defendant — individual defendant who was acquitted in the case, was present at this association meeting for the purpose of cultivating customers for polished plate glass.

    Mirrors are made, as I am sure the Court knows, by the silvering of one side of a certain quality of plate glass.

    Now, another name, Jonas, a name which will loom — does loom large in the issue before us.

    The Government’s principal witness, Jonas was the President of one of the larger mirror manufactures, not indicted in the case.

    Jonas was not present at Asheville.

    There was concern there among the mirror manufactures present in Asheville about a shortage of plate glass, a shortage which was occurring particularly at the time when the market, which had been quite bad for mirrors, was looking up.

    And, there was discussion at Asheville among some of the mirror manufactures about an increase in price.

    Some of them made a telephone call and a joint call to Jonas who was not there and reported to him the discussion about the price of — of plate glass mirrors.

    Jonas expressed disbelief.

    There had been a price war.

    It was not the best feeling, apparently, in some quarters.

    And, Jonas said he’d liked to talk to Gordon.

    And Gordon was requested to — to call Jonas by some of those who had first called Jonas, and Gordon did.

    The only testimony we have on what was said in that telephone conversation between Gordon and Jonas is the testimony of Jonas.

    He said, first, that he — Jonas was not much in favor of raising my prices at that time, but he asked Gordon if there was anything to this discussion and Gordon said he had heard, in some of the rooms, some conversation about price.

    We must look again to the uncorroborated testimony of Jonas as to this portion of the record.

    Jonas said in his testimony that Gordon might have said, just like anybody would say, “You ought to be getting more for the product than we were getting for it.”

    Now, Jonas testified that the alleged conspiracy could not have been effectuated without Jonas’ participation.

    And, he, himself, confessed — conspirator claimed for himself indispensability.

    The Asheville meeting ended at the end of the third day and, on the next day following, there was a meeting at a place called the “Bluffs,” an inn on Blue Ridge Parkway.

    And, those present at this meeting were Messer, one of the defendants, Buchan, representing one of the corporate defendants, Stroupe, representing one of the corporate defendants, and Jonas who had not been present at Asheville but did go to the meeting at the Bluffs.

    No one representing PPG was present at the meeting at the Bluffs.

    Leland Hazard:

    Jonas was the only witness who testified that an agreement was reached at the Bluffs.

    Other witnesses testified that the meeting was held but it was Jonas, and only Jonas, who testified that an agreement was reached there to increase the price to 78% off list.

    This meeting at the Bluffs occurred on a Thursday.

    And, on Friday, six companies announced a price change to 78 off list.

    On the next day, one company followed, and then, on the following Monday, PPG announced from its High Point Warehouse, which had not been represented at Asheville, a price change to that same figure.

    Jonas testified that he called Gordon in Pittsburgh on Friday, the day following the meeting at the Bluffs, and, not reaching Gordon, that he gave to Prichard, an associate of Gordon’s, the message of the Bluffs meeting.

    Jonas testified that, again, on the following Monday, he called Prichard and asked Prichard if had given Gordon the message that Jonas had given to Prichard of the meeting about the Bluffs, and Jonas testified that Prichard said that he had.

    This was categorically denied by Prichard.

    He took the stand and testified that, although Jonas frequently called PPG, PPG was Jonas’ supplier of plate glass, about shipments of glass, that Jonas had never reported to Prichard or spoken to Prichard about the meeting at the Bluffs or about the alleged conspiracy.

    I — these are the facts.

    I come now to the question whether a record of grand jury testimony, having been kept, the transcript of that testimony constitutes a prior statement of the trial witness, subject to the standards of Jencks.

    The Government makes a candid concession which, I think, justifies the notice of the Court.

    It appears at page 30 of the brief and, while the Court is turning to that, I need mention only that Jencks holds that there’s no need for a prior showing of conflict, that it’s sufficient if the prior statement relates to the testimony of the witness, that only the defendant may inspect, that is, that inspection by the defendant through his counsel was the only adequate inspection, that inspection in camera is disapproved, and that executive privilege in that case, in the Jencks case, was no bar to the inspection.

    Now, the Government says, on page 30, at the bottom of the page, opposite of Numeral 1, “there is no need to deny that many of the considerations which led this Court in Jencks to order production of the informer’s statements also tend to support petitioner’s claim that they are entitled to equally free access to a witness prior grand jury testimony, but there is here present an important countervailing consideration which was absent in Jencks, the long-established policy that maintains the secrecy of the grand jury proceeding in the federal courts, citing United States against Procter and Gamble.”

    Well, I need only mention that, in Procter and Gamble, no witness had taken the stand.

    I — I do need to mention that it was in that decision in which this Court, not reaching the point that we have before us, noted that use of the grand jury transcript at the trial to impeach a witness, to refresh his recollection, to test his credibility, and the like, that these would be cases of particularized need where the secrecy of the grand jury proceeding is lifted discretely and limitedly.

    The Government relies on hailing, may I say, after the concession, almost exclusively, on one of the foundations for the policy of grand jury secrecy mentioned in Procter and Gamble and else where, that is, the policy to encourage by the rule of secrecy free disclosures by persons who have information with respect to the commission of — commission of crimes.

    The Government argues that the grand jury witnesses might not testify fully if they did not have the assurance of secrecy.

    Now, may it please the Court, no grand jury witness ever had such an assurance or could have.

    The witness knows that the Government may call him at the trial and, using the grand jury transcript, make him testify to that which he testified to at the grand jury.

    The witness knows that his trial testimony will not be limited to what he may wish to testify to there, regardless of what he said before the grand jury.

    And, if the Government could give such an assurance, perjury would be encouraged.

    If the trial testimony is consistent with the grand jury testimony, then disclosure occurs.

    The secrecy has been destroyed by the act of the Government in calling the witness and, if the trial testimony is not consistent with the grand jury testimony, then that is precisely the particularize need which entitles the defense to the examination of that record by counsel.

    If the Government wishes to assure witnesses that there grand jury testimony will never be disclosed, the Government has a method for that.

    It is the Government which decides whether or not to keep the record.

    No law requires the taking of a transcript of a grand jury proceeding.

    But, the Government, having once elected to take that record, must then make it available in a particularized need case for use on cross-examination.

    If the Government wishes to protect that witness under the rule of secrecy, then it need only refrain from taking the record.

    Does your position go so far as to say that, in every case where the Government has a grand jury proceeding and calls a witness to testify, that the defendants in an antitrust case should be entitled to grand jury minutes?

    Leland Hazard:

    If the —

    And, it would, I suppose, wouldn’t it?

    Leland Hazard:

    If the witness testifies at the trial, that his testimony there covered the same subject matter —

    Yes.

    Leland Hazard:

    As — at the grand jury, then my —

    In other words, you read the statute and read — certainly, the statute is not as —

    Leland Hazard:

    I read Jencks —

    As doing away with the traditional rule of secrecy in the grand jury minutes to this extent.

    Leland Hazard:

    I think that the statute does not purport to bear on the case we have here, but I read Jencks to mean that when the Government has called a witness and record shows he testified that he had testified on the same subject matter at the trial.

    Felix Frankfurter:

    Is there anything said in Jencks about grand jury minutes?

    Leland Hazard:

    No.

    Felix Frankfurter:

    In this reference?

    Leland Hazard:

    No, sir, no.

    Felix Frankfurter:

    Then, why do you think —

    Leland Hazard:

    No, I think not.

    Felix Frankfurter:

    — Jencks is dealing with grand jury.

    Leland Hazard:

    No, sir, I think not.

    Felix Frankfurter:

    Then, why do you — then, why do read Jencks as dealing with grand jury?

    Leland Hazard:

    Because Jencks establishes standards which have ends of justice standards mentioned in both —

    Felix Frankfurter:

    Yes, but I am always in the federal court that stood on different basis, from the beginning of time down to date —

    Leland Hazard:

    I think —

    Felix Frankfurter:

    It’s on this day.

    Leland Hazard:

    I think that is what is before this Court.

    Felix Frankfurter:

    Well, I understand that.

    I — that’s why I came down here today.

    I was maybe leaving room for your argument.

    Leland Hazard:

    I have — I have examined the reasons for grand jury secrecy enunciated by this Court in several cases, as late as Procter and Gamble, and I submit, Mr. Justice Frankfurter, that those foundations well stated out there do not include this case.

    Felix Frankfurter:

    Take Socony.

    You couldn’t do with reference to any other refreshment what was sanctioned by this Court in Socony, but —

    Leland Hazard:

    Well, that was the case which was —

    Felix Frankfurter:

    You couldn’t —

    Leland Hazard:

    — confined —

    Felix Frankfurter:

    You couldn’t, could you?

    Leland Hazard:

    Entirely to refreshments.

    Felix Frankfurter:

    I know, but you couldn’t do that —

    Leland Hazard:

    And —

    Felix Frankfurter:

    As to non-grand jury refreshments, could you?

    Leland Hazard:

    And this Court held in that case that it had to — the refreshment had to do with menutia.

    Felix Frankfurter:

    I know, but you couldn’t — in that, you couldn’t do, you couldn’t refresh, the hundreds of refreshments that were made in that case through any other aid except grand jury without showing it to the other side, could you?

    Leland Hazard:

    I think that’s right.

    If the Court please, may I reserve the remainder of my time?

    Earl Warren:

    You may, you may.

    Could I ask you just one question?

    Leland Hazard:

    Yes, you could.

    As I understand it, Mr. Hazard.

    You don’t stand on the statute, is that right?

    Leland Hazard:

    That’s right.

    You stand on Jencks?

    Leland Hazard:

    That’s right.

    I think we would have been here, regardless of Jencks, on the same fundamental of what is a fair trial.

    Earl Warren:

    Mr. Elman.

    Philip Elman:

    Mr. Chief Justice and may it please the Court.

    If I may answer Mr. Justice Harlan’s question, the reason why the petitioners do not stand on the Jencks statute is clear from the terms of the statute, as well as the legislative history.

    The statute refers to statements made to an agent of the Government.

    It’s perfectly clear that all the legislators made the courts recognize that a grand jury is not an agent of the Government and, for that reason, the petitioners argue that the statute is irrelevant.

    We do not believe the statute is irrelevant, but we do not rely on it as the source for our position.

    If I may begin by stating what we believe to be the issue presented for decision by the Court, the only issue that’s presented by the record in this case, the only issue that was tendered to Judge Paul who tried the case, the only issue which he decided, the only issue that was considered and decided by the Court of Appeals is this.

    Whether, in a criminal case, after a witness for the Government has concluded his direct examination, and it appears that that witness has testified before the grand jury on the same general subject matter, whether, for that reason, and for that reason alone, the defendant is entitled as a matter of right, and not as a matter addressed to the discretion of the trial court but as a matter of law and as a matter of right, to delivery of the grand jury transcript of that witness’ testimony directly to the defendant without any prior inspection or examination of any kind by the judge.

    And, wether he’s entitled to all of the testimony given by that witness, rather than to any particular selected portions indicated by the defendant.

    That was the motion that was made by the defense counsel in this case.

    Philip Elman:

    It appears in the record, pages 263 and 264.

    Mr. Jonas was an important witness for the Government.

    He was characterized by the Court of Appeals as the principal witness for the prosecution, but it is not fair to say that he was the only important or principal witness for the Government.

    The Government case here was presented on a basis of testimony given by officials, employees of the defendant corporations.

    And, their testimony, as I hope I shall have an opportunity to demonstrate, corroborated in every important particular in Mr. Jonas’ testimony, but Mr. Jonas was, as I say, an important, if not perhaps the most important, of the Government witnesses.

    He had given testimony in expressed terms as to the formation of a price-fixing conspiracy and as to the existence of an agreement.

    The other witnesses, while they had presented testimony as to the meetings, as to the discussions, as to the price, as to the participation of the defendants, as to the issuance of identical letters by them to their customers as to the prices, they had not used the word “agreement”.

    And, Mr. Jonas had and, for that reason, as I say, he was an — he was a very — he was a key witness.

    And, on — on page 263, after he had concluded the direct examination he was asked by — on cross-examination, whether he had appeared before the grand jury and given testimony on the same general subject matter, he said, “Yes, three times.”

    Top of page 264, Mr. Humrickhouse, who was trial counsel for Pittsburgh Plate Glass, “Now, Your Honor, I move for the formal production of the grand jury transcript for this witness’ testimony.”

    “The motion is denied.”

    That is on Mr. Jonas.

    Felix Frankfurter:

    Was that motion —

    Philip Elman:

    Now —

    Felix Frankfurter:

    — was that motion renewed later in any qualified form?

    Philip Elman:

    It was not.

    Now, the basis for that motion, the groundwork for it had been laid a few minutes earlier in a colloquy between court and counsel that begins at the bottom of page 258 of the record.

    There was a discussion as to the extent to which the defendant should receive certain government papers.

    And Mr. Humrickhouse, at the bottom of page 258, said, “Your Honor, we would like to call Mr. Jonas in the absence of the jury and ask him two or three questions going into the question of whether or not he testified before the grand jury.”

    The Court, “What do you want to ask him?”

    “I want to ask him did he testify before the grand jury in Roanoke in December of 1956 and January — February or March of 1957, how many times did he testify before the grand jury, and so on.”

    And, the Court, this is — this is in the middle of page 259, Judge Paul says “I thought — exactly what I thought you were going to do, move for the production of the grand jury minutes, and you are not going to get them.”

    Mr. Humrickhouse, “We want to make the record.”

    And, the Court goes on and — and says that if they could get Mr. Jonas’ testimony here, “You can — I’m reading now from the bottom of the page, “You can do that for each witness and get a complete transcript of the testimony before the grand jury, and that is not permissible.”

    Now, the starting point in this case is a proposition upon which the petitioners and the Government are in complete accord.

    There is not disagreement that the matter here is governed here by Rule 6 (e) of the Federal Rules of Criminal Procedure promulgated by this Court in 1946, after submission to Congress.

    It is also common ground between us that, prior to June 3, 1957, when this Court delivered the decision in the Jencks case, it is absolutely clear that no court had ever decided or even seriously suggested that a motion of this sort for automatic delivery to the defense of the grand jury testimony given by a government witness should be granted simply on the ground that the witness had testified before the grand jury on the same subject matter.

    And, for that reason, that there might possibly be some prior inconsistencies which could be used for purposes of impeachment.

    Prior to the Jencks decision, it was the law, as clear as any proposition has ever been the law, that the principle of secrecy of grand jury proceedings in this regard was go — was controlling and that the defendant could not lift that secrecy for that purpose.

    And, the argument which is made here today is that the Jencks decision changed that and we — the Government’s position, in response, can be summarized very briefly.

    Philip Elman:

    We think that the Jencks decision does not deal with grand jury testimony.

    We think that when Congress, shortly after the Jencks decision, dealt with this problem, it — evidence to recognition on both sides, both the proponents of a broad disclosure rule and the proponents of a narrow disclosure rule, were united in their view that the Jencks case had — did not deal with grand jury transcripts.

    Those who opposed the legislation or argue that there was no reason for it because Jencks didn’t deal with grand jury transcripts and that the fears as to the abuse and the lengths to which the decision might be applied were grounders.

    Those who argued for the legislation in Congress pointed to the Rosenberg case which, incidentally, was the case immediately be — argued before this one.

    The Rosenburg decision in the Third Circuit, in — late in June of 1957, within a few weeks after this Court’s decision in Jencks, the Third Circuit, in a short per curiam, had held that grand jury minutes, as well as the statements of the witness Meyer and Dirks in the preceding case should have been turned over to the defense.

    And, that was pointed to as a horrible example of lower court misconstruction of the Jencks case which ne — which called congressional delimitation of the scope of Jencks.

    So that, it’s clear from the legislative history that Congress understood that the Jencks decision did not extend to the production of grand jury minutes.

    It’s perfectly clear that that was the reason why no — nothing was included in the statute to deal with it and, if the petitioners are right in their contention that they are entitled to this automatic delivery without judicial inspection, without any sort of screening by the judge in the elimination of irrelevant matter, the elimination of matter referring to innocent third persons, matter containing questions asked by the grand jurors, and so on, they just get it all intact, you will have the anomalous result.

    The grand jury minutes which have always been regarded is entitled to the highest degree of protection from disclosure will be in — will have less protection than statements made to the F.B.I.

    William O. Douglas:

    Mr. Elman, these grand — the transcript of the grand jury proceedings is available to the lawyers for the Government, isn’t it?

    Philip Elman:

    Yes, sir, certainly, and it’s available to the Government because Rule 6 (e), in its first sentence, specifically said that they shall be used by Government.

    This Court, in the rule, has affirmatively provided that the — that this — that the attorneys for the Government, for the use in the performance of their duties, shall have the right to use the grand jury minutes.

    Now, that is an exception to the rule of secrecy explicitly provided by the Court in its rules and the reason, of course, is —

    William O. Douglas:

    Wouldn’t the Act be the same by the Court and Congress?

    Philip Elman:

    By the Court and the Congress.

    And — and while — while I’m on that point, Mr. Justice, let me say that I think that the fact that we are dealing here with a rule is, to our minds, of great importance.

    This Court, yesterday, in the Isthmian case, was also dealing with a rule.

    That happened to be an admiralty rule.

    And, the — it would had — it was argued to the Court there that the rule was archaic, that it was inflexible, that perhaps it should be changed.

    And, the Court recognized that, perhaps, that might be so, but the Court said — the Court rejected that argument.

    It said if the rule is to be changed, it ought to be changed either by legislation or by an amendment to the rule, and the change should not be made in the decisional process.

    And the — and the Court pointed out that if the change were made in the context of an amendment to the rule, it would be opportunity for hearings, for receiving data, and perhaps, more important than anything else, for receiving the recommendations of the judicial conference.

    There are arguments that are being made here as if there was — this were a de novo proposition that if we should reexamine for the first time the question whether secrecy of the grand jury is or is not a good thing, whether it hurts —

    Potter Stewart:

    There’s a question of — your opposing counsel makes a point that the secrecy of the grand jury about which we’ve read a great deal and many people had read a great deal, may just me a kind of chivalrous anyway, that it doesn’t amount to much.

    He says, “First of all, you’ve been protected entirely simply by not having a transcript made.”

    And, that’s completely within the control of the Government, isn’t that correct?

    Secondly, he says “if you do go to trial after a grand jury indictment, since the transcript, if the transcript is available to the Government, then anything that happened in the grand jury will or may be made public.

    First of all, if the witness testifies, as he did, before the grand jury, then the beans are spilled.

    If he testifies in some other way, then the grand jury transcript can be used to impeach him, and then, the beans are spilled.”

    Now, what do you say to that argument?

    Philip Elman:

    Well, my first response —

    Potter Stewart:

    That may — that may be two or three.

    Philip Elman:

    My first response, Mr. Justice Stewart, is that these aren’t new arguments.

    These arguments have been made before.

    They were — they’ve been made by eminent scholars.

    Professor Wigmore is, perhaps, the most eminent proponent of that view.

    If Professor Wigmore is right, then this Court’s decision in the Socony-Vacuum case is wrong.

    If he is right, then this Court’s decision in the Johnson case is wrong.

    If he is right, the decision in Procter and Gamble case is wrong because, in every one of these cases, the grand jury’s function had terminated.

    If the secrecy of the grand jury proceedings is a temporary provisional thing, as Professor Wigmore argues, then there was certainly no reason for it to be continued.

    But, if I may go, it isn’t —

    Potter Stewart:

    I understand —

    Philip Elman:

    Excuse me.

    Potter Stewart:

    I understand that you realize that.

    Do you concede that those arguments do have some validity as an objection to the trial court’s decision?

    Philip Elman:

    My — my argument on that point is this.

    I — I am very conscious of the fact that this problem is not a new one.

    It’s a problem that has existed, certainly, ever since the institution of the grand jury, which goes back to before the Norman Conquest.

    I’m very conscious of the fact that this Court has addressed itself many times to the broad proposition of the secrecy of the grand jury proceedings and whether, as a matter of policy and logic, it’s desirable to continue it.

    And, the Court has always rejected any attempt to violate the principle.

    In the — in the Johnson case, there’s reference made to the indispensible secrecy of the grand jury.

    In Mr. Justice Black’s opinion, in the Costello case, he refers to the grand jury as part of our federal constitutional system.

    It’s a — it was put — it’s explicitly referred to in the Fifth Amendment as a — as the initial step in a criminal prosecution, and it’s there not only for the benefit of the Government, but it’s there for the benefit of the accused because our history is full of instances where the independence of the grand jury has been an obstacle, a barrier against unfounded prosecution.

    Now, I’m conscious of the fact that our greatest judges, judges with the most intimate experience with this problem, such as Judge Augustus Hand, the Judge Learned Hand, whenever they’ve talked about the grand jury, they’ve expressed horror at the thought that — one might be able to inspect grand jury minutes freely.

    Now, it’s against that background of centuries of history that we consider these contentions that are being made.

    Now, if — as a matter of abstract theory, if we were sitting in a room where no one had ever heard of the grand jury and someone said “let’s establish this and organize an institution called the grand jury,” what about the matter of secrecy?

    I — I agree that there are weighty arguments to be made on both sides of the proposition, but those arguments have been — had been weighed.

    They have been resolved, and Rule 6 (e) has resolved them.

    And, Rule 6 (e) didn’t me — introduce anything new.

    As I say, it’s — this is old law.

    Philip Elman:

    And, certainly, it’s surprising to us to find that, in 1959, it’s argued — this point is being argued to Your Honors as if it were a new one and that the Jencks case, somehow, had wiped the slate entirely clean and that we start form scratch.

    Felix Frankfurter:

    Mr. —

    Philip Elman:

    Now —

    Felix Frankfurter:

    — Elman, I am one member of the Court.

    I hope you don’t rest merely on the fact that these are not new arguments.

    They might be —

    Philip Elman:

    Well —

    Felix Frankfurter:

    Good even though old.

    Philip Elman:

    I — I hasten to embrace your suggestion.

    Of course, there — of course, the history has — is relevant here not simply as a matter of history because it show — but it’s relevant here to show that these arguments which — have been weighed and they’ve been rejected.

    And, the reason they have been rejected is that it’s been considered essential to the functioning of a grand jury as an institution that it be able to operate without the — without publicity, that the jurors, as well as the witnesses, be free from any possible restraints or intimidation or inhibitions.

    We know that anti — in the antitrust cases, particularly, as Mr. Justice Douglas pointed out last year in the Procter and Gamble case, the witness is before the grand jury may be employees of the defendants, they may be customers, they may be suppliers, they may be other people to whom it’s important to maintain good friendly economic relations.

    William J. Brennan, Jr.:

    That doesn’t quite apply where the Government needs the witness.

    We know now who the witness is and the question —

    Philip Elman:

    Well —

    William J. Brennan, Jr.:

    — here is whether that witness’, and only that witness’, testimony before the grand jury (Inaudible)

    Philip Elman:

    Well, the suggestion is that, once the witness testifies at the trial, his identity has been disclosed.

    So, it’s all out in the public and either he has — either his testimony is the same as it was before the grand jury, in which case, there’s nothing new, or else, it’s different, in which case, he must have testified falsely one place or the other.

    Now, that, I say with all respect to Professor Wigmore —

    William J. Brennan, Jr.:

    You mean, falsely —

    Philip Elman:

    — is false — I mean —

    William J. Brennan, Jr.:

    — you mean, not necessarily consciously precariously but —

    Philip Elman:

    Well, that there may be, let’s use a neutral word like “discrepancies” or “inconsistencies.”

    Now, that, I say with — with all respect to the proponents of the view, creates a false dichotomy.

    It assumes — it assumes a — a notion.

    It assumes that the grand jury proceedings are something different from what they actually are.

    Now, the — the basic characteristic of a grand jury proceeding is that it is not — it’s not a proceeding in which a judge presides.

    It’s a proceeding — proceeding which is informal in nature.

    It’s a — there are laymen, 23 jurors, drawn from the community.

    It’s an informal proceeding.

    Philip Elman:

    It’s not — it’s not an adjudicatory proceeding.

    It doesn’t deal with the question of guilt or innocence.

    It’s an inquisitorial investigative body.

    And — and it’s — and those who appeared before grand juries, those who are familiar with grand juries — jury operations have always remarked on the importance of preserving the informal, free, and easy atmosphere of the grand jury in which witnesses are not bound by the technical rules of evidence.

    They may speculate.

    They may — they may testify as to hearsay.

    They may test — they may present rumors, anything that will give the grand jury leads in its investigation, so that, you can’t compare the testimony of the witness at the trial —

    William J. Brennan, Jr.:

    Well, this is a different argument and, if I may say so, I think a much better one than any notion of the identity of the witnesses has to be this one, that there is a difference in the type of testimony.

    Philip Elman:

    Oh, there —

    William J. Brennan, Jr.:

    That makes a little more sense to me than the other.

    Philip Elman:

    Well, I don’t think that I’ll be able to present every argument that can be made in support of secrecy within the time available, but I do think that all of these arguments that had been made against secrecy have been considered by the courts.

    Felix Frankfurter:

    May I suggest that unless —

    Philip Elman:

    And have been rejected.

    Felix Frankfurter:

    May I suggest that, unless you were a practitioner in New York over a good many years and had seen the two systems in the operation, grand jury minutes allowed in the state courts are not allowed in the federal courts, you couldn’t present one of the most important arguments relevant to this subject matter.

    That’s why all the New York judges and the federal courts feel as strongly as they do about that matter.

    Philip Elman:

    Of course another difference is that, in the federal judicial system, the grand jury is expressly provided for by the Bill of Rights.

    It’s part of our constitutional system for trying criminal cases.

    That’s not true in the states.

    In many states, grand juries have either been abolished or is trial by information.

    In some States, I believe, California is one of them, it’s — there is a statute that says that the defendant may get the grand jury transcript simply by paying for it.

    In New York — in New York, there’s the — New York adopted the arguments which were rejected by this Court in the Costello case.

    In New York, defendant may challenge an indictment on the ground that there wasn’t enough evidence before the grand jury to justify the indictment.

    So, in New York, in order to permit a defendant to make that kind of an argument, they are very liberal in giving him access to the grand jury minutes.

    And, I think that, to some extent, explains the liberality of the Second Circuit rule as to the inspection of grand jury minutes.

    I think there’s been an influence of the state practice in this respect.

    Now, I would just like to point out, in that regard, that the Fourth Circuit in its opinion here, opinion by Chief Judge Sobeloff, did not deal with this problem in terms of absolutes.

    Judge Sobeloff did not say that the defendant never gets an opportunity to inspect the grand jury minutes.

    The — the Court recognized that we’re dealing here with two very important interests.

    Interests that are of concern to both sides, to the Government, as well as to the accused.

    The interest of a defendant in having a fair trial, the interest of a defendant in having fair opportunity for cross-examination, that’s of concern to the Government, too, as well as the accused.

    Philip Elman:

    And, the interest of the — and, the interest in preserving the integrity, the independence, the efficiency of the grand jury, well, that’s not merely of concern to the Government.

    That’s of vital concern to defendants, to the accused, to have that kind of an institution and, because it’s a question of balancing two principles, two interests, accommodating each as much as possible to the other, that Judge Swan in the Alper case, the leading case in the Second Circuit and Judge Sobeloff here said it’s dangerous to lay down any fixed rules.

    That, ultimately, it’s — it comes down to a matter of a sound judicial discretion that a trial judge is always under a duty to examine the grand jury minutes if he has any reason at all to suspect that the witness may be unreliable, that he may be untrustworthy, that he may be giving testimony which is at variance with what he testified elsewhere.

    The trial judge is always under that obligation and he cannot escape it.

    He — the trial judge always has, in the courtroom, the prosecutor who has those grand mi — who has seen the grand jury minutes.

    And, if the Court so desires, it can call upon the prosecutor —

    William J. Brennan, Jr.:

    Well, may I ask you, Mr. Elman —

    Philip Elman:

    For assistance in that regard.

    William J. Brennan, Jr.:

    I gather, this is a suggestion that there may be circumstances in which it would be appropriate to turn over the grand jury testimony of a witness to the defense for purposes —

    Philip Elman:

    Certainly.

    William J. Brennan, Jr.:

    — of cross-examination.

    Philip Elman:

    Certainly.

    William J. Brennan, Jr.:

    I’m just interest — how would you go about it?

    Now, here, your suggestion is, I gather, that the motion was just shotgun, “give us the whole — all of his testimony,” is that it?

    Philip Elman:

    Well, as the court below characterizes, there’s a motion for automatic delivery —

    William J. Brennan, Jr.:

    Yes.

    Philip Elman:

    — on demand.

    William J. Brennan, Jr.:

    Well, just to — what form of motion should have been made?

    Philip Elman:

    Well, the argument here is that Jonas’ testimony as to the telephone calls of this man Prichard in Pittsburgh were crucial.

    They link PPG to the conspiracy.

    We disagree.

    In our brief, we argue that was not a crucial part.

    William J. Brennan, Jr.:

    Yes, but on that —

    Philip Elman:

    And, the judge —

    William J. Brennan, Jr.:

    Premise —

    Philip Elman:

    — the judge — Judge Paul agreed with us on it, but passing that.

    Assuming it was a crucial part — portion of Jonas’ testimony, we think it’s significant in here that he wasn’t cross-examined by the defense as to that.

    There was no cross-examination whatsoever.

    If there had been cross-examination, conceivably, Jonas might have been caught in some inconsistencies.

    Going beyond that, supposed they have asked Jonas whether he had testified before the grand jury as to these telephone calls.

    Philip Elman:

    Suppose Jonas had said “well, I don’t remember,” and they pursued that a little further and they found out that he was really very vague as to what his recollection had been six months earlier, or suppose they asked him if he — his testimony before the grand jury as to this thing was exactly the same and he said “well, no.

    Frankly, I don’t think so.

    I’ve — I’ve checked my records lately and I find that I did make these calls but when I was before the grand jury, I testified otherwise.”

    Now, if you had any basis at all, anything at all, you —

    William J. Brennan, Jr.:

    Then you would expect defense counsel to pinpoint —

    Philip Elman:

    Go to the Judge.

    William J. Brennan, Jr.:

    To that particular portion of his grand jury testimony.

    Philip Elman:

    Exactly what the Court was talking about last year in Procter and Gamble.

    If there’s a — that there’s a particularized need.

    In Procter and Gambler, the Court said “we’ll breach the secrecy if there’s compelling necessity, but you have to make a showing.

    You just can’t say this man testified before the grand jury, that’s enough.”

    Now — excuse me, my time is up.

    Earl Warren:

    No.

    You may finish that statement.

    Philip Elman:

    Well —

    Earl Warren:

    Briefly.

    Philip Elman:

    We — we believe that there — if there are any circumstances which would afford any basis at all for an argument to the judge, “Please exercise your discretion.

    Take a look at this grand jury minutes.

    If you find anything at all that we can use as a basis for cross-examination of this witness, we think we ought to have them.”

    I think that — that’s the way they go about it.

    Now, the judge doesn’t have to wait for that.

    I think the judge, if he looks at this witness and he has a feeling that this man just isn’t telling a very convincing story, or suppose Jonas’s testimony was contradicted by another witness that the judge believed, the judge might say, “Well, I think, in my exercise of my responsibility here to preside over the trial and to protect the rights of the defendant, I think I ought to look at the in — the grand jury minutes.”

    Now, I think if this Court declares that it’s his duty, he will do so.

    Felix Frankfurter:

    Before you sit down, Mr. Elman, just to reach the brief, our tune is whether the Government refers to the Douds, the case where the Second Circuit, which feels very strongly on this subject, reversed for failure to disclose the grand jury minutes in the Remington case.

    Philip Elman:

    Yes, sir.

    It —

    Felix Frankfurter:

    Because, there, that was a charge of perjury and, there, the Court — Judge Swan, I believe.

    I forget.

    I don’t remember.

    Philip Elman:

    Yes.

    Philip Elman:

    That was Judge Swan.

    Felix Frankfurter:

    I think Judge Swan?

    Philip Elman:

    Yes, it was.

    Felix Frankfurter:

    He said that perjury is something else began, that it is so vital where truth-telling or confidence that’s in his present testimony may be derived from the fact that he told it previously makes it necessary to allow the grand jury minutes to be seen because they’re not —

    Philip Elman:

    Yes.

    Felix Frankfurter:

    They are not wounded in the Second Circuit about that.

    That’s in —

    Philip Elman:

    Yes.

    Felix Frankfurter:

    They really couldn’t —

    Philip Elman:

    That’s not only the Remington —

    Felix Frankfurter:

    Say they do open that.

    Philip Elman:

    Not only the Remington case in the Second Circuit, but the Rose case in the Third Circuit.

    May — may I, excuse me, Mr. Chief Justice.

    Earl Warren:

    Yes, yes you may.

    Philip Elman:

    In the Herzog case in the Ninth Circuit, all hold that where it appears that the defendant has told a different story, not necessarily an inconsistent one but a different story, then the defendant does have the right to get the grand jury proceedings.

    Tom C. Clark:

    Is that case referred to in your brief, the Rose?

    Philip Elman:

    The — the Rose case is —

    Tom C. Clark:

    Yes.

    Philip Elman:

    — referred to, the Remington case is, the Herzog case is 226 F.2d 561.

    I believe it’s the —

    Felix Frankfurter:

    Do you mind repeating it?

    2 —

    Philip Elman:

    226 F.2d 561, that’s a Ninth Circuit case, and that is not the only instance in which the defendant may get the grand —

    Felix Frankfurter:

    Those are all the cases of reversals for failure to make accessible the grand jury minutes.

    Philip Elman:

    No, I don’t believe they are all reversals.

    Felix Frankfurter:

    The Rose case was.

    Philip Elman:

    They were —

    Felix Frankfurter:

    The Rose —

    Philip Elman:

    The Rose case was, but that the Herzog case was an affirmance but the Court of Appeals indicated that that was a proper —

    Felix Frankfurter:

    They had allowed it in that —

    Philip Elman:

    Situation for —

    Felix Frankfurter:

    The trial court allowed it there.

    Philip Elman:

    Yes and, of course, the defendant — then, it may get the grand jury transcript where he’s challenging the regularity of the proceeding —

    Felix Frankfurter:

    Yes.

    Philip Elman:

    Before the grand jury.

    If he says an unauthorized person was present, for example, there, he may get it —

    Felix Frankfurter:

    But, in the Johnson case, he indicated that he can’t get the grand jury minutes just in order to invalidate or subvert the legality of the grand jury.

    That was the Johnson case.

    Philip Elman:

    That’s right, but that turned on the nature of the matters —

    Felix Frankfurter:

    That he amended it.

    Philip Elman:

    — before the grand jury.

    Thank you very much.

    Earl Warren:

    Mr. Hazard.

    Leland Hazard:

    May it please the Court.

    I should disclaim for the petitioner any intent to wipe the slate clean.

    The foundations of the phrase says the grand jury secrecy are multiple and there is no intent here to shatter those foundations, for example, to prevent the escape of those who are about to be indicted with no attack on that foundation.

    I’m — I’m extracting these from Procter and Gamble, recently enunciated by this Court, and the only witness for it.

    To ensure the utmost freedom to the grand jury in its deliberation, that is, you can’t have cameras, and the newspapers, reporters in television in the grand jury room or anything else.

    There is no attack on that foundation.

    Potter Stewart:

    Your point is that, in this context, secrecy has disappeared anyway, isn’t it?

    Leland Hazard:

    That is my point.

    Potter Stewart:

    Is it?

    Leland Hazard:

    It’s — excuse me, Mr. Justice Stewart.

    Potter Stewart:

    I don’t mean to interrupt, but I just want to be sure I understood you.

    Leland Hazard:

    To prevent subornation of perjury or tampering with the witness who may testify before the grand jury and, later, appear at the trial.

    There’s no attack on that foundation.

    To encourage free disclosures, I have discussed that.

    It’s only by osmosis that this case might be drawn into that, number 4.

    And, the fifth reason, and the last one, enunciated by this Court in Procter and Gamble, to protect an innocent accused who is exonerated from disclosure of the fact that he was under.

    In fact, there’s no attack on that — on that foundation.

    Leland Hazard:

    Procter and Gamble was a case, a civil case first, it was the case in which the defense, knowing that a grand jury transcript was going to be used in preparing a bill in a civil case, sought to get the same material.

    And, this Court held that it was a blanket approach and didn’t allow it.

    But, this is a particularized approach in this case.

    This is pinpoint.

    Here is a self-confessed conspirator, not indicted himself, his company not indicted, who testified that he was indispensable to the conspiracy.

    That it couldn’t have been effectuated without him.

    And, he put the words in Gordon’s mouth and he put the words in Prichard’s mouth.

    Now, it said here that he was not the only principal witness, but I heard no other name fall from the lips of my brother, nor —

    Earl Warren:

    Mr. Hazard —

    Leland Hazard:

    — did I hear —

    Earl Warren:

    Mr. Hazard, is your claim here any less general that in Procter and Gamble merely because you ask for the transcript of one witness where all you ask was, “Were you a witness?”

    And he said “yes,” “then, we want the transcript.”

    Leland Hazard:

    This —

    Earl Warren:

    Now, if you could just as well do that for every witness and the sum of those requests would be exactly the same as in Procter and Gamble —

    Leland Hazard:

    We do not —

    Earl Warren:

    Wouldn’t it?

    Leland Hazard:

    We do not ask that, Mr. Chief Justice.

    Only if the witness takes the stand and only —

    Earl Warren:

    That’s right.

    Leland Hazard:

    If he testifies on the stand that he testified on the same subject matter before the grand jury.

    Earl Warren:

    Yes, but you asked him no other questions, except, “Did you testify?”

    Leland Hazard:

    Not “did you testify?”

    “Did you testify on the same —

    Earl Warren:

    Yes.

    Leland Hazard:

    — subject matter?”

    Earl Warren:

    Yes, that’s right.

    Leland Hazard:

    And here, he testified that he did on that same subject matter, the price conspiracy.

    Earl Warren:

    Is that right?

    Leland Hazard:

    And it is for that reason.

    Now, I submit, if the Court please, that although there is evidence — laudable evidence of candor here, what the Government is really after is an advantage which, in a fair trial, it cannot have.

    Leland Hazard:

    The Government wants the privilege of using that grand jury transcript to keep this witness on the stand in a — in a channel which the Government takes.

    And having used that transcript for that purpose, it then asks that this Court approve its refusal to withhold it from the defense.

    Charles E. Whittaker:

    Mr. —

    Leland Hazard:

    That’s what this case is about.

    Charles E. Whittaker:

    Mr. Hazard, may I ask you how you square your argument with Rule 6 of Criminal Rules?

    Are you really saying that the judge, in denying the request which you say you have a right to make, I — I think I understand you to say, as a matter of law, abuses his discretion when he refuses it?

    Leland Hazard:

    I say that either he does not have the discretion under Rule 6 or he abuses it.

    I don’t care which it is.

    Rule 6 gives a permission.

    It does not contain a prohibition.

    And, I say that the permission given in that rule was not validly exercised here by withholding the — the transcript.

    Charles E. Whittaker:

    Well, is not the — do you not consider the words “may be — may — that is a delivery may be made only when so directed by the Court as — this first starts out saying “disclosure of matters occurring before the grand jury other than its deliberations,” etcetera, “may be made then only when so directed by the Court.”

    You then say that gives the Court a discretion to do it?

    Leland Hazard:

    I — I — well, otherwise, the jury or attorney, interpreter or stenographer may disclose matters occurring before the grand jury only when so directed by the — by the Court.

    This, I say, gives the Court a discretion.

    There is one point, Mr. Justice Whittaker, that I — I want to make clear in this connection.

    That is, that there is a difference between production and use.

    Our position is that once the witness has been put on the stand, once he has testified to the same subject matter as he testified to before the grand jury, then counsel for the defense must have access to the transcript.

    Otherwise, the defendant is denied the right of counsel, unless his counsel can examine.

    Now, having examined that it’s entirely conceivable that the Government may bring many matters to the attention of the trial judge, the judge — trial judge himself may, on his own motion, consider many matters which will be withheld but only after counsel for the accused has had the acces and has made the examination or the right to make the examination.

    I would invite the attention of the Court, in closing, to what I believe the Government is after here.

    It simply wishes to keep the grand jury testimony as its exclusive tactical weapon, for its own use, to trial.

    Now, in a democracy, we allow the grand jury, a great body of inquisitorial powers, and this is necessary in the interest of discovering the evidences of crime.

    But, to extend the inquisition into the courtroom by the devise of withholding that transcript from the defense which has been used for the prosecution, that goes too far.

    That’s our case.