William J. Brennan, Jr.

“ The following morning during a conference held in the judge's chambers the Government again asserted that the agent's report was not a copy of the original notes, and that the notes were no longer in existence. ”

“ For example, the Interview Report states that Staula was unable to give any description of one of the robbers. This is in sharp contrast to his positive identification of Lester made on direct examination. Experienced trial judges and lawyers will readily understand the value of the use of the report on cross-examination of the witness. But the petitioners were deprived of the opportunity to make use of the report by the obviously self-serving declarations of the witness that it did not accurately record what he told the agent. ”

“ The Government contends that only destruction for improper motives or in bad faith should be so regarded. The petitioners contend that destruction without regard to the circumstances should be so regarded. However, this record affords us no opportunity to decide this important question of the construction of subsection (d) . We do not yet know that such a paper existed, and was destroyed, or the circumstances of its destruction, nor can we know without the benefit at least of Toomey's testimony. ”

“ As to oral statements, the statute prescribes that their content be 'a substantially verbatim recital' of the witness' words recorded contemporaneously. 'Clearly this provision allows the production of mechanical or stenographic recordings of oral statements, even though later transcribed.' Palermo v. United States, 360 U.S. 343, 351-352, 79 S.Ct. 1217, 1224, 3 L.Ed.2d 1287. Producibility, for purpose of impeachment of a statement drawn up in the third person by an agent requires that the whole oral statement be contemporaneously recorded. ”

“ See United States v. Shotwell Mfg. Co., 355 U.S. 233, 78 S.Ct. 245, 2 L.Ed.2d 234. The District Court will supplement the record with new findings and enter a new final judgment of conviction if the court concludes upon the new inquiry to reaffirm its former rulings. ”

“ 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. ”

“ The Assistant refused to deliver the report to petitioners' counsel but delivered it to the judge for his inspection. 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
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'Property of FBI.-This report is loaned to you by the FBI, and neither it nor its contents are to be distributed outside the agency to which loaned.
Sex................................ Male.
Race............................... Negro. ”