William J. Brennan, Jr.

“ I agree that, under such circumstances, it was unnecessary for petitioner to show that Ford's and Matusow's trial testimony was contradicted in some respect by their contemporaneous reports. Although some federal courts have required a showing of contradiction, [20] this Court never has done so. [21] A rule requiring a showing of contradiction in every case would not serve the ends of justice. I concur, therefore, in that portion of the Court's opinion holding that petitioner laid a sufficient foundation for the production of the reports. ”

“ We hold, further, that the petitioner is entitled to inspect the reports to decide whether to use them in his defense. Because only the defense is adequately equipped to determine the effective use for purpose of discrediting the Government's witness and thereby furthering the accused's defense, the defense must initially be entitled to see them to determine what use may be made of them. ”

“ Matusow testified that the petitioner delivered his planned lecture, informed his audience of the 'do-day' idea, praised the Soviet Union's disarmament plan, referred to the United States as the aggressor in Korea, and urged all to read the 'Daily People's World,' identified by Matusow as the 'West Coast Communist Party newspaper.' Another witness, an expelled member of Amalgamated Local 890, testified that petitioner, during 1950, 1951 and 1952, repeatedly urged at union meetings that the union members read that paper. ”

“ Justice requires no less. [14]
The practice of producing government documents to the trial judge for his determination of relevancy and materiality, without hearing the accused, is disapproved. [15] Relevancy and materiality for the purposes of production and inspection, with a view to use on cross-examination, are established when the reports are shown to relate to the testimony of the witness. ”

“ He is entitled to no more. Whether a new trial is required should depend on the contents of the requested reports. If the reports contain material that the trial court finds has evidentiary value to petitioner, a new trial should be granted in order that petitioner may use it. But if the reports do not contain contradictory or exculpatory material helpful to petitioner, no possible prejudice could have resulted from the trial court's denials of petitioner's motions. ”

“ The question of Relevancy is never one for the witness to concern himself with; nor is the applicability of a privilege to be left to his decision. It is his duty to bring what the Court requires; and the Court can then to its own satisfaction determine by inspection whether the documents produced are irrelevant or privileged. ”

“ Requiring the accused first to show conflict between the reports and the testimony is actually to deny the accused evidence relevant and material to his defense. The occasion for determining a conflict cannot arise until after the witness has testified, and unless he admits conflict, as in Gordon, the accused is helpless to know or discover conflict without inspecting the reports. ”

“ At the third meeting, in April 1949, Ford said that the Party's state organization was completed, and the petitioner was appointed to the State Board and the Party leader in the southern half of the State. At the fourth meeting, in May 1949, Ford said that the petitioner gave a progress report upon his success in recruiting Party members among labor groups, and offered to use Local 890's newspaper, 'The Union Worker,' which he edited, to support issues of Party interest. ”

“ Because of our disposition of this case, it is unnecessary to consider these rulings.↑ In upholding the refusal to require the production of the reports, the Court of Appeals said:↑ Cf. United States v. Burr, 25 Fed.Cas. page 187, No. 14,694, wherein Chief Justice Marshall, when confronted with a request for the inspection of a letter addressed to the President and in the possession of the attorney for the United States, stated:↑ United States v. Schneiderman, D.C., 106 F.Supp. 731; People v. ”