United States v. Nobles

Lewis F. Powell, Jr.:

In the second case which is 74-634, U.S. against Nobles, we have a case that came to us on certiorari from the Ninth Circuit Court of Appeals.

An investigator for a defendant in a criminal case obtained prior to trial a statement from a prosecution witness.

The witness was cross-examined by defense counsel on a subject matter of this statement.

Thereafter and for impeachment purposes, the defense called in the investigator to testify as to his interview with the prosecution witness.

Defense counsel advised the Court, however, that he would not produce the written statement.

The Court of Appeals reversing the District Court held that both the Fifth Amendment and Federal Criminal Procedure Rule 16 protected the statement from compelled disclosure.

We take a different view.

The Fifth Amendment privilege being personal to the defendant does not extend to the statement of a third-party witness nor does Rule 16 authorize a different result as it relates only to pretrial discovery.

Defendant also asserted a work product privilege, but even if that privilege would have been available it was waived by defendant when he elected to make testimonial use of the statement.

Accordingly, we -- we reverse the Court of Appeals.

Mr. Justice White joined by Mr. Justice Rehnquist filed a concurring opinion in which he agreed with the judgment and joined in Parts, II, III and V of the Court's opinion.

Mr. Justice Douglas took no part in the decision of this case.

Warren E. Burger:

Thank you Mr. Justice Powell.