Felix Frankfurter

“ Ordinarily the defense demand will be only for those statements which satisfy the statutory limitations. Thus the Government will not produce documents clearly beyond the reach of the statute for to do so would not be responsive to the order of the court. However, when it is doubtful whether the production of a particular statement is compelled by the statute, we approve the practice of having the Government submit the statement to the trial judge for an in camera determination. Indeed, any other procedure would be destructive of the statutory purpose. ”

“ Although it is plain that some restrictions on production have been introduced, it would do violence to the understanding on which Congress, working at high speed under the pressures of the end of a session, passed the statute, if we were to sanction applications of it exalting and exaggerating its restrictions, in disregard of the congressional aim of reaffirming the basic Jencks principle of assuring the defendant a fair opportunity to make his defense. ”

“ The bills as they went to Congress contained explicit provisions making them exclusive. For example, the Senate bill provided in subsection (a) :
'In any criminal prosecution brought by the United States, no statement or report of a Government witness or prospective Government witness (other than the defendant) made to an agent of the Government which is in the possession of the United States shall be the subject of subpena, or inspection, except, if provided in the Federal Rules of Criminal Procedure (18 U.S.C.A.) , or as provided in paragraph (b) of this section.' (Emphasis added.) ”

“ Such a vain attempt at forcasting myriad diversities with minor variance is as futile and uncalled for in this as in so many other areas of the law. That is what the judicial process is for to follow a generally clear direction in dealing with a new diversity as it may occasionally arise. ”

“ Exercising our power, in the absence of statutory provision, to prescribe procedures for the administration of justice in the federal courts, this Court, on June 3, 1957, in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, decided that the defense in a federal criminal prosecution was entitled, under certain circumstances, to obtain, for impeachment purposes, statements which had been made to government agents by government witnesses. ”

“ It was important that the statement could fairly be deemed to reflect fully and without distortion what had been said to the government agent. Distortion can be a product of selectivity as well as the conscious or inadvertent infusion of the recorder's opinions or impressions. It is clear from the continuous congressional emphasis on 'substantially verbatim recital,' and 'continuous, narrative statements made by the witness recorded verbatim, or nearly so * * *,' see Appendix B, post 79 S.Ct. ”

“ In light of these principles the case before us is clear. Both the District Court and the Court of Appeals correctly held that the sole standard governing production of the agent's memorandum of his conference with Sanfilippo was 18 U.S.C. § 3500, 18 U.S.C.A. § 3500. The district judge and a unanimous Court of Appeals held that the statement was not within the definition of statement in (e) as properly understood by them. We have examined the statement and the record and find that the determination of the two courts below was justified and therefore must be sustained. ”

“ The statements in the reports are frequent and clear. There are many like expressions on the floor of both chambers. For example, there was a lengthy debate in the Senate over an amendment which would have restricted the type of statement which could be produced beyond the limitations already incorporated in the Senate bill. The entire debate proceeded on the explicit assumption that only those statements which were enumerated in the bill could be produced at all. ”

“ Decision need turn on no broader ground. Cf. Lee v. Madigan, 358 U.S. 228, 230 231, 79 S.Ct. 276, 278-279, 3 L.Ed.2d 260. What was stated in the agent's summary was already known in every important detail to the defense from the transcript of the interview of July 16 and the affidavit of August 23.
The summary in this case does not present the question whether the statute requires the productio of a statement which records part of, but not the entire interview between the witness and the government agent. ”

“ See 37 Harv.L.Rev., at 1086 and 093 1094, for a collection of such legislation. The power of this Court to prescribe rules of procedure and evidence for the federal courts exists only in the absence of a relevant Act of Congress. ”

“ What small debate there was following the Conference Report supports the conclusion that no change in the exclusiveness of the bill was intended. For example, Senator O'Mahoney, introducing the conference measure, stated that, ' (t) here was some fear upon the part of the Department of Justice that the Senate bill would create a greater latitude for the examination of irrelevant reports of agents. ”

“ Of course this would only be adequate if the defense had some reason to believe that an interview of such character had taken place and if the witness recalled the interviewer's name. Pressed further as to cases of the nonavailability of the interviewer, government counsel made it clear that 'I would certainly not want to carry the burden of saying that in some extraordinary situation where there was no other possible way to getting hold of it (the summary) that there might not be exceptions read into the statute-what I am talking about now is the normal, ordinary case.'↑ See H.R.Rep. No. ”