Petitioners were convicted in a Federal District Court of
unlawfully possessing and transporting goods stolen while in
interstate commerce. On cross-examination, a key government witness
admitted that (1) prior to the trial, he had given to government
agents written statements which conflicted with his testimony
incriminating petitioners at the trial, and (2) he had pleaded
guilty in another federal court to unlawful possession of the same
stolen goods, and had not yet been sentenced.
Held:
1. In the circumstances of this case, the trial court erred in
denying petitioners' motion for the production and inspection of
such conflicting written statements in the possession of the
Government. Pp.
344 U. S.
417-421.
2. The trial court erred in excluding from evidence a transcript
of the proceedings in the other court showing that, in accepting
the guilty plea and deferring sentence of this witness, the judge
had advised him "to tell the probation authorities the whole story,
even though it might involve others." Pp.
344 U. S.
421-422.
3. The combination of these two errors was sufficiently
prejudicial to require reversal of petitioners' conviction. Pp.
344 U. S.
422-423.
196 F.2d 886 reversed.
Petitioners were convicted in a Federal District Court of
unlawful possession and transportation of goods stolen while in
interstate commerce. The Court of Appeals affirmed. 196 F.2d 886.
This Court granted certiorari. 344 U.S. 813.
Reversed, p.
344 U. S.
423.
Page 344 U. S. 415
MR. JUSTICE JACKSON delivered the opinion of the Court.
Petitioners Gordon and MacLeod were convicted on an indictment
of four counts, two charging unlawful possession of goods stolen
while in interstate commerce [
Footnote 1] and two that defendants caused this property
to be further transported in interstate commerce. [
Footnote 2] The Court of Appeals affirmed,
[
Footnote 3] and we granted
certiorari limited to questions concerning production and admission
of documentary evidence tending to impeach the testimony of a
prosecution witness. [
Footnote
4]
The Government proved that film being shipped from Rochester,
New York, to Chicago, Illinois, was stolen from a truck in Chicago,
and that part of it later had been recovered in Detroit. To
implicate the two petitioners, it relied principally on one
Marshall, who, in Detroit, had pleaded guilty to unlawful
possession of the film. Marshall testified that he and a
codefendant, Swartz, who died before trial, on several occasions
had driven from Detroit to Chicago and back. On each visit, they
had stopped at petitioner Gordon's Chicago jewelry store. On one
trip, according to Marshall, Gordon accompanied them to a garage in
that city, and there Gordon and a man resembling MacLeod helped to
load into into Marshall's car film that was stacked in the garage.
A week later, Marshall said, he and Swartz again called on Gordon,
when the latter sent them to see "Ken" at an address which he wrote
on a piece of paper. At this address, MacLeod identified himself as
"Ken," and again the three men loaded film from the garage into
Marshall's car.
Page 344 U. S. 416
Partial corroboration of Marshall was supplied by a Federal
Bureau of Investigation agent, who had been watching the garage. He
testified that, on the latter occasion, he saw Marshall and Swartz
drive up to MacLeod's address, whereupon MacLeod removed an old
truck from the garage. Later, Swartz and Marshall drove away with
film cartons stacked on the back seat of Marshall's car.
Both petitioners took the stand and denied complicity in the
theft and knowledge that the film was stolen. While their physical
movements as recited by them were not materially different from
those related by government witnesses, petitioners gave a different
and innocent version of the relationship of their acts to the
criminal transactions. Gordon testified that the deceased Swartz
was a business acquaintance who asked on the first visit if Gordon
knew of a garage where a truck could be temporarily stored. Gordon
called MacLeod, who was his partner in a rooming house venture, and
told him that he would send two men over who wished to use a garage
back of the rooming house. MacLeod testified that he had not known
either of the men before they placed a truck in the garage, and
that, at their request, he had helped load film from the truck into
Marshall's car merely as a favor.
On cross-xamination, Marshall admitted that, between his
apprehension and his final statement to the Government, which
implicated petitioners, he had made three or four statements which
did not. Petitioners requested the trial judge to order the
Government to produce these earlier statements. The request was
denied. Marshall also admitted that, one week before he made any
statement incriminating petitioners, he had pleaded guilty to
unlawful possession of the film in a federal court in Detroit. He
was still unsentenced, and no date for sentencing had been set,
although nine months had elapsed since this plea was received. He
denied that he had received
Page 344 U. S. 417
any promise of immunity or threats which would influence him to
testify as he did. Petitioners then sought to introduce from the
transcript of the Detroit proceeding this statement made to
Marshall by the federal district judge:
"Very well, the plea of guilty is accepted. Now, I am going to
refer your case to the Probation Department for presentence report.
I think I should say to you, as I said to your lawyer yesterday
when he and Mr. Smith called upon me in chambers yesterday morning,
that it seemed to me that, if you intended to plead guilty and
expected a recommendation for a lenient sentence or for probation
from the Probation Department, that it would be essential that you
satisfy the Probation Department that you have given the law
enforcement authorities all the information concerning the
merchandise involved in this proceeding. . . . I am not holding out
any promises to you, but I think you would be well advised to tell
the probation authorities the whole story, even though it might
involve others."
This was excluded on the objection that it was immaterial.
The trial judge, in his charge, and the Court of Appeals, in its
opinion, [
Footnote 5]
recognized that where, as here, the Government's case may stand or
fall on the jury's belief or disbelief of one witness, his
credibility is subject to close scrutiny. But the question for this
Court is whether rejection of petitioners' two efforts to impeach
the credibility of Marshall did not withhold from the jury
information necessary to a discriminating appraisal of his
trustworthiness to the prejudice of petitioners' substantial
rights. The two issues stand on somewhat different grounds.
The request by the accused to order production of Marshall's
earlier statements was cast in terms of obtaining access to
documentary evidence, rather than an offer
Page 344 U. S. 418
that would require a ruling on its admissibility. But the
Government apparently concedes, as we think it must, that if it
would have been prejudicial error for the trial judge to exclude
these statements had the defense been able to offer them, it was
error not to order their production. The relation of admissibility
to production for inspection is by no means settled in the various
jurisdictions, but we conclude that the Government does not concede
enough. Demands for production and offers in evidence raise related
issues, but independent ones, and production may sometimes be
required though inspection may show that the document could
properly be excluded.
In the absence of specific legislation, questions of this nature
are governed "by the principles of the common law as they may be
interpreted by the courts of the United States in the light of
reason and experience." [
Footnote
6] Apparently, earlier common law did not permit the accused to
require production of such documents. [
Footnote 7] Some state jurisdictions still recognize no
comprehensive right to see documents in the hands of the
prosecution merely because they might aid in the preparation or
presentation of the defense. [
Footnote 8] We need not consider such broad doctrines in
order to resolve this case, which deals with a limited and definite
category of documents to which the holdings of this opinion are
likewise confined.
By proper cross-xamination, defense counsel laid a foundation
for his demand by showing that the documents were in existence,
were in possession of the Government, were made by the Government's
witness under examination, were contradictory of his present
testimony, and that the contradiction was as to relevant, important
and material matters which directly bore on the main
Page 344 U. S. 419
issue being tried: the participation of the accused in the
crime. The demand was for production of these specific documents,
and did not propose any broad or blind fishing expedition among
documents possessed by the Government on the chance that something
impeaching might turn up. [
Footnote
9] Nor was this a demand for statements taken from persons or
informants not offered as witnesses. [
Footnote 10] The Government did not assert any privilege
for the documents on grounds of national security, confidential
character, public interest, or otherwise.
Despite some contrary holdings on which the courts below may
have relied, we think their reasoning is outweighed by that of
highly respectable authority in state and lower federal courts in
support of the view that an accused is entitled to the production
of such documents. [
Footnote
11] Indeed, we would find it hard to withstand the force of
Judge Cooley's observation in a similar situation that
"the state has no interest in interposing any obstacle to the
disclosure of the facts unless it is interested in convicting
accused parties on the testimony of untrustworthy persons.
[
Footnote 12]"
In the light of our reason and experience, the better rule is
that, upon the foundation that was laid, the court should have
overruled the objections which the Government advanced and ordered
production of the documents.
Page 344 U. S. 420
The trial court, of course, had no occasion to rule as to their
admissibility, and we find it appropriate to consider that question
only because the Government argues that the trial judge, in the
exercise of his discretion, might have excluded these prior
contradictory statements, and, since that would not have amounted
to reversible error, it was not such to decline their production.
We think this misconceives the issue. It is unnecessary to decide
whether it would have been reversible error for the trial judge to
exclude these statements once they had been produced and inspected.
[
Footnote 13] For production
purposes, it need only appear that the evidence is relevant,
competent, and outside of any exclusionary rule, for rarely can the
trial judge understandingly exercise his discretion to exclude a
document which he has not seen, and no appellate court could
rationally say whether the excluding of evidence unknown to the
record was error, or, if so, was harmless. The question to be
answered on an application for an order to produce is one of
admissibility under traditional canons of evidence, and not whether
exclusion might be overlooked as harmless error.
The Court of Appeals affirmed on the ground that Marshall's
admission, on cross-xamination, of the implicit contradiction
between the documents and his testimony removed the need for resort
to the statements and the admission was all the accused were
entitled to demand. We cannot agree. We think that an admission
that a contradiction is contained in a writing should not bar
admission of the document itself in evidence, providing
Page 344 U. S. 421
it meets all other requirements of admissibility and no valid
claim of privilege is raised against it. [
Footnote 14] The elementary wisdom of the best
evidence rule rests on the fact that the document is a more
reliable, complete, and accurate source of information as to its
contents and meaning than anyone's description, and this is no less
true as to the extent and circumstances of a contradiction. We hold
that the accused is entitled to the application of that rule not
merely because it will emphasize the contradiction to the jury, but
because it will best inform them as to the document's impeaching
weight and significance. [
Footnote 15] Traditional rules of admissibility prevent
opening the door to documents which merely differ on immaterial
matters. The alleged contradictions to this witness' testimony
relate not to collateral matters, but to the very incrimination of
petitioners. Except the testimony of this witness be believed, this
conviction probably could not have been had. Yet his first
statement was that he got the film from Swartz, his first four
statements did not implicate these petitioners, and his fifth did
so only after the judicial admonition we will later consider. The
weight to be given Marshall's implication of the petitioners was
decisive. Since, so far as we are now informed by the record, we
think the statements should have been admitted, we cannot accept
the Government's contention based on a premise that the court was
free to exclude them. It was error to deny the application for
their production.
The second effort to impeach Marshall was to offer parts already
quoted from the transcript of proceedings
Page 344 U. S. 422
in Detroit. Although Marshall admitted pleading guilty to the
offense, and that, nine months later, he was still unsentenced, he
denied that he had received either promises or threats. The
transcript would have shown the jury that a federal judge, who
still retained power to fix his sentence, in discussing Marshall's
expectation of a "recommendation for a lenient sentence or for
probation," had urged him to tell all he knew, "even though it
might involve others." Involvement of others, whom Marshall had not
theretofore mentioned, soon followed. We think the jury should have
heard this warning of the judge, which was an addition to the
matter brought out on cross-xamination. The question for them is
not what the judge intended by the admonition, nor how we, or even
they, construe its meaning. We imply no criticism of it, and he
expressly stated that he was holding out no promise. But the
question for the jury is what effect they think these words had on
the mind and conduct of a prisoner whose plea of guilty put him in
large measure in the hands of the speaker. They might have regarded
it as an incentive to involve others, and to supply a motive for
Marshall's testimony other than a duty to recount the facts as best
he could remember them. Reluctant as we are to differ with an
experienced trial judge on the scope of cross-xamination, the
importance of this witness constrains us to hold that the
transcript was erroneously excluded.
We believe, moreover, that the combination of these two errors
was sufficiently prejudicial to require reversal. The Government,
in its brief, argues strongly for the widest sort of discretion in
the trial judge in these matters, and urges that, even if we find
error or irregularity, we disregard it as harmless, [
Footnote 16] and affirm the conviction.
We
Page 344 U. S. 423
are well aware of the necessity that appellate courts give the
trial judge wide latitude in control of cross-xamination,
especially in dealing with collateral evidence as to character.
Michelson v. United States, 335 U.
S. 469. But this principle cannot be expanded to justify
a curtailment which keeps from the jury relevant and important
facts bearing on the trustworthiness of crucial testimony.
Reversals should not be based on trivial, theoretical, and harmless
rulings. But we cannot say that these errors were unlikely to have
influenced the jury's verdict. We believe they prejudiced
substantial rights, and the judgment must be reversed.
Reversed.
[
Footnote 1]
18 U.S.C. (Supp. V) § 659.
[
Footnote 2]
18 U.S.C. (Supp. V) § 2314.
[
Footnote 3]
196 F.2d 886.
[
Footnote 4]
344 U.S. 813.
[
Footnote 5]
196 F.2d 886, 888.
[
Footnote 6]
Funk v. United States, 290 U.
S. 371; Fed.Rules Crim.Proc. rule 26.
[
Footnote 7]
6 Wigmore on Evidence, § 1859g.
[
Footnote 8]
2 Wharton's Criminal Evidence (11th ed.) § 785.
[
Footnote 9]
As to the pretrial discovery stage,
compare Fed.Rules
Civ.Proc. Rule 34 with the narrower provisions of Fed.Rules
Crim.Proc. Rule 16.
[
Footnote 10]
In
Goldman v. United States, 316 U.
S. 129, the notes sought to be inspected had neither
been used in court nor was there any proof that they would show
prior inconsistent statements.
[
Footnote 11]
Asgill v. United States, 60 F.2d 776;
United States
v. Krulewitch, 145 F.2d 76, 79;
People v. Davis, 52
Mich. 569, 18 N.W. 362;
State v. Bachman, 41 Nev.197, 168
P. 733;
People v. Schainuck, 286 N.Y. 161, 164, 36 N.E.2d
94;
People v. Walsh, 262 N.Y. 140, 186 N.E. 422.
[
Footnote 12]
People v. Davis, 42 Mich. 569, 573, 18 N.W. 362,
363.
[
Footnote 13]
We note in passing that the rules relating to impeachment by
prior self-ontradiction, which provide that such contradiction may
be shown only on a matter material to the substantive issues of the
trial, contain within themselves a guarantee against multiplication
and confusion of issues. Therefore, the discretion of the trial
judge in excluding otherwise admissible evidence of this type is
not as wide as it is in the vague and amorphous area of
cross-xamination of character witnesses.
See Michelson v.
United States, 335 U. S. 469.
[
Footnote 14]
3 Wigmore on Evidence, § 1037; 3 Wharton's Criminal Evidence
(11th ed.) § 1309.
[
Footnote 15]
The best evidence rule is usually relied upon by one opposing
admission, on the ground that the evidence offered by the proponent
does not meet its standards. Its merit as an assurance of the most
accurate record possible commends its extension to this unique
situation where it is the proponent who seeks to rely on it.
[
Footnote 16]
Fed.Rules Crim.Proc. Rule 52 admonishes us that "Any error,
defect, irregularity or variance which does not affect substantial
rights shall be disregarded."