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decided: January 23, 1961.



Warren, Black, Frankfurter, Douglas, Clark, Harlan, Brennan, Whittaker, Stewart

Author: Brennan

[ 365 U.S. Page 86]

 MR. JUSTICE BRENNAN delivered the opinion of the Court.

After a government witness testifies on direct examination in a federal criminal prosecution the trial court is required, under the so-called Jencks Act,*fn1 on motion of

[ 365 U.S. Page 87]

     the defendant, to order the United States to produce, for impeachment purposes, defined pretrial statements of the witness, or parts of such statements as determined under subsection (c), which relate to the subject matter of his trial testimony and are in the possession of the United States. The conviction of the petitioners in the District Court for the District of Massachusetts for bank robbery in violation of 18 U. S. C. ยง 2113 was sustained by the Court of Appeals for the First Circuit. 269 F.2d 688. During the trial the court ordered the Government to produce a document described on cross-examination by one of its witnesses in terms which satisfy the definition of a "statement" under the Act. The Government denied having possession of such a document. It did, however,

[ 365 U.S. Page 88]

     admit possession of an Interview Report of an interview by an FBI agent with that witness, but contended that this report fell outside the statute. The trial judge held an inquiry without the jury present, at the conclusion of which he refused to order the United States to deliver the Interview Report to the petitioners, and also denied their motion to strike the testimony of the witness. The procedure at that inquiry raises questions important in the administration of the Jencks Act, and we granted certiorari limited to the review of those questions. 362 U.S. 909.

The government witness was Dominic Staula, a depositor who was in the bank at the time of the robbery. On direct examination he identified the petitioner Lester as

[ 365 U.S. Page 89]

     one of the robbers. When asked on cross-examination whether he made any statements to government agents before the trial, he said that an agent of the Federal Bureau of Investigation who interviewed him during the week following the robbery wrote down such a statement. His recollection of what occurred at the interview was not entirely clear,*fn2 but the trial judge ruled that he had made a statement satisfying the requirements of the Jencks Act and ordered the United States to produce it. The Assistant

[ 365 U.S. Page 90]

     United States Attorney presenting the Government's case stated that he had no such paper as the witness described. He stated further that the only document in the possession of the prosecution was not a "statement" within the statute, but a typed Interview Report*fn3 of FBI Special Agent Toomey prepared and transcribed after the interview at a time unknown to the Assistant. The Assistant refused to deliver the report to petitioners' counsel but delivered it to the judge for his inspection.

[ 365 U.S. Page 91]

     To the court's question whether the Government possessed "any statement that was copied by an FBI Agent which in any way would reflect a statement that this witness made and which he substantially adopted

[ 365 U.S. Page 92]

     as the statement," the Assistant replied "No, your Honor, we don't." To the further question whether "the United States [has] in its possession any notes that were taken down by the FBI Agent at the time this witness was interviewed," the Assistant answered, "I do not have them in my possession and I do not know whether they ever existed."

The Jencks Act limits access by defendants to such government papers as fit the Act's definition of "statements" which relate to the subject matter as to which the witness has testified, Palermo v. United States, 360 U.S. 343. However, the statute requires that the judge shall, on motion of the defendant, after a witness called by the United States has testified on direct examination, order the United States, for impeachment purposes, to produce any such "statements." To that extent, as the legislative history makes clear, the Jencks Act "reaffirms" our holding in Jencks v. United States, 353 U.S. 657, that the defendant on trial in a federal criminal prosecution is entitled, for impeachment purposes, to relevant and competent statements of a government witness in possession of the Government touching the events or activities as to which the witness has testified at the trial. S. Rep. No. 981, 85th Cong., 1st Sess., p. 3. And see H. R. Rep. No. 700, 85th Cong., 1st Sess., pp. 3-4. The command of the statute is thus designed to further the fair and just administration of criminal justice, a goal of which the judiciary is the special guardian.

After an overnight recess the trial judge conducted an inquiry without the jury present to take testimony and hear argument of counsel. Plainly enough this was a proper, even a required, proceeding in the circumstances. Determination of the question whether the Government should be ordered to produce government papers could not be made from a mere inspection of the Interview Report, but only with the help of extrinsic evidence. The

[ 365 U.S. Page 93]

     situation was different from that governed by subsection (c), in which the Government admits that a document in its possession is a "statement" but submits the paper for the judge's in camera inspection to delete matter which the Government contends does not relate to the subject matter of the testimony of the witness. The situation was similar to that in Palermo, where the Government also contended that a paper in its possession was not a "statement." We there approved the procedure of taking extrinsic testimony out of the presence of the jury to assist the judge in reaching his determination whether to order production of the paper. We said, at 354-355, "It is also the function of the trial judge to decide, in light of the circumstances of each case, what, if any, evidence extrinsic to the statement itself may or must be offered to prove the nature of the statement."

In this case the aid of extrinsic evidence was required to answer the following questions bearing on the petitioners' motions:

Did Toomey write down what Staula told him at the interview? If so, did Toomey give Staula the paper "to read over, to make sure that it was right," and did Staula sign it?

Was the Interview Report the paper Staula described, or a copy of that paper? In either case, as the trial judge ruled, the Interview Report would be a producible "statement" under subsection (e) (1). "Statements" under that subsection are not limited to such as the witness has himself set down on paper. They include also a statement written down by another which the witness "signed or otherwise adopted or approved" as a statement "made by said witness." True, the report does not bear Staula's signature and the ...

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