Petitioner was convicted in a Federal District Court of
violating 18 U.S.C. § 1001 by filing, under § 9(h) of the National
Labor Relations Act, as president of a labor union, an affidavit
stating falsely that he was not a member of the Communist Party or
affiliated with such Party. Crucial testimony against him was given
by two paid undercover agents for the FBI, who stated on
cross-examination that they had made regular oral or written
reports to the FBI on the matters about which they had testified.
Petitioner moved for the production of these reports in court for
inspection by the judge with a view to their possible use by
petitioner in impeaching such testimony. His motions were
denial of the motions was erroneous, and the
conviction is reversed. Pp. 353 U. S.
(a) Petitioner was not required to lay a preliminary foundation
for his motion, showing inconsistency between the contents of the
reports and the testimony of the government agents, because a
sufficient foundation was established by their testimony that their
reports were of the events and activities related in their
testimony. Gordon v. United States, 344 U.
, distinguished. Pp. 353 U. S.
(b) Petitioner was entitled to an order directing the Government
to produce for inspection all written reports of the FBI agents in
its possession, and, when orally made, as recorded by the FBI,
touching the events and activities as to which they testified at
the trial. P. 353 U. S.
(c) Petitioner is entitled to inspect the reports to decide
whether to use them in his defense. Pp. 353 U. S.
(d) The practice of producing government documents to the trial
judge for his determination of relevancy and materiality, without
hearing the accused, is disapproved. P. 353 U. S.
(e) Only after inspection of the reports by the accused must the
trial judge determine admissibility of the contents and the method
to be employed for the elimination of parts immaterial or
irrelevant. P. 353 U. S.
Page 353 U. S. 658
(f) Criminal action must be dismissed when the Government, on
the ground of privilege, elects not to comply with an order to
produce, for the accused's inspection and for admission in
evidence, relevant statements or reports in its possession of
government witnesses touching the subject matter of their testimony
at the trial. Pp. 353 U. S.
(g) The burden is the Government's, not to be shifted to the
trial judge, to decide whether the public prejudice of allowing the
crime to go unpunished is greater than that attendant upon the
possible disclosure of state secrets and other confidential
information in the Government's possession. P. 353 U. S.
226 F.2d 540, 553, reversed.
MR. JUSTICE BRENNAN delivered the opinion of the Court.
On April 28, 1950, the petitioner, as president of Amalgamated
Bayard District Union, Local 890, International Union of Mine, Mill
& Smelter Workers, filed an "Affidavit of Non-Communist Union
Officer" with the National Labor Relations Board, pursuant to §
9(h) of the National Labor Relations Act. [Footnote 1
] He has been convicted under a two-count
indictment charging that he
Page 353 U. S. 659
violated 18 U.S.C. § 1001 [Footnote 2
] by falsely swearing in that affidavit that he
was not, on April 28, 1950, a member of the Communist Party or
affiliated with such Party. The Court of Appeals for the Fifth
Circuit affirmed the conviction, [Footnote 3
] and also an order of the District Court
denying the petitioner's motion for a new trial. [Footnote 4
] This Court granted certiorari.
Two alleged trial errors are presented for our review. Harvey F.
Matusow and J. W. Ford, the Government's principal witnesses, were
Communist Party members paid by the Federal Bureau of Investigation
contemporaneously to make oral or written reports of Communist
Party activities in which they participated. They made such reports
to the FBI of activities allegedly participated in by the
petitioner, about which they testified at the trial. Error is
asserted in the denial by the trial judge of the petitioner's
motions to direct the Government to produce these reports for
inspection and use in cross-examining Matusow and Ford. Error is
also alleged in the instructions given to the jury on membership,
affiliation, and the credibility of informers. [Footnote 6
Former Party members testified that they and the petitioner, as
members of the Communist Party of New Mexico, had been expressly
instructed to conceal their membership and not to carry membership
cards. They also testified that the Party kept no membership
records or minutes of membership meetings, and that such meetings
were secretly arranged and clandestinely held. One of the witnesses
said that special care was taken to conceal the Party membership of
members, like the petitioner,
Page 353 U. S. 660
"occupying strategic and important positions in labor unions and
other organizations where public knowledge of their membership to
non-Communists would jeopardize their position in the
Accordingly, the Government did not attempt to prove the
petitioner's alleged membership in the Communist Party on April 28,
1950, with any direct admissions by the petitioner of membership,
by proof of his compliance with Party membership requirements, or
that his name appeared upon a membership roster, or that he carried
a membership card.
The evidence relied upon by the Government was entirely
circumstantial. It consisted of testimony of conduct of the
petitioner from early 1946 through October 15, 1949, and of
Matusow's testimony concerning alleged conversations between him
and the petitioner at a vacation ranch in July or August, 1950, and
concerning a lecture delivered by the petitioner at the ranch. The
Government also attached probative weight to the action of the
petitioner in executing and filing an Affidavit of Non-Communist
Union Officer on October 15, 1949, because of the events
surrounding the filing of that affidavit. The Government bridged
the gap between October 15, 1949, and July or August, 1950, with
the testimony of Ford that, during that period, the Party took no
disciplinary action against the petitioner for defection or
deviation, and did not replace the petitioner in the Party office
which Ford testified the petitioner held as a member of the Party
The first alleged Party activity of the petitioner preceded his
union employment. A witness, who was a Party member in the spring
of 1946, testified that, at that time, he and the petitioner were
present at a closed Party meeting at the home of the Party chairman
for Colorado, where the petitioner, a veteran of World War II, led
in urging that veterans who were Party members spread out
Page 353 U. S. 661
into several veterans' organizations and not all join the same
one, the better to further Party work.
Later in 1946, the petitioner was employed by the International
Union of Mine, Mill & Smelter Workers as business agent for
several local unions in the Silver City-Bayard, New Mexico, area.
It was testified that one of the petitioner's first acts was to
meet with the International Union's then Regional Director for the
Southwest, a Communist Party member, and with the Communist Party
organizer for the area, to develop plans for organizing a Party
group within each of those locals, which later merged to form
Amalgamated Local 890 under the petitioner's presidency.
J. W. Ford was a member of the Communist Party of New Mexico
from 1946 to September 1950, and, from 1948, was a member of the
State Board and a Party security officer. He said that, in 1948, he
became a paid undercover agent for the FBI, [Footnote 7
] and reported regularly upon Party
activities and meetings. He testified that the petitioner was also
a Party and a State Board member, and he related in detail
occurrences at five closed Party meetings which he said the
At the first meeting, in August, 1948, Ford said the Party
members worked out a plan to support the petitioner's candidacy for
Congress on the ticket of the Progressive Party. At the second
meeting, in February, 1949, Ford said that the petitioner and other
Communist Party members were appointed delegates to a meeting of
the Mexican-American Association in Phoenix, Arizona, to further a
Party plan to infiltrate that organization and to use it for the
Party's purposes. At the third meeting, in April, 1949, Ford said
that the Party's state organization
Page 353 U. S. 662
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. At the fifth meeting, in August, 1949, Ford said that
preparations were made for another meeting later in that month of
the Mexican-American Association in Albuquerque, and that the
delegates, including the petitioner, were instructed to give
vigorous support to the meeting, but to take care not to make
themselves conspicuous in the proceedings.
Ford's duties as a Party security officer were to keep watch on
all Party members and to report
"any particular defections from the Communist philosophy or any
peculiar actions, statements or associations, which would endanger
the security of the Communist Party of the state."
If any defection reported by a security officer were considered
important, the member
"would be called in and would be either severely reprimanded or
criticized, or disciplined. If he refused to accept such
discipline, he would either be suspended or expelled."
Ford testified that, between August, 1949, and September, 1950,
when Ford ceased his activities with the New Mexico Party, there
was no disciplinary action taken against the petitioner, and, to
his knowledge, the petitioner was not replaced in his position on
the State Board of the Communist Party.
The events leading up to the petitioner's execution and filing,
on October 15, 1949, of an Affidavit of Non-Communist Union Officer
were testified to by a former International Union representative, a
Communist Party member during 1947 to 1949. He said that, about
Page 353 U. S. 663
months before, in May or June, 1948, a meeting of Party members
holding offices in locals of the International Union of Mine, Mill
& Smelter Workers was held in Denver to formulate plans for
combatting a movement, led by non-Communists, to secede from the
International Union. He said that the Party members, including the
petitioner, were informed of Party policy not to sign affidavits
required by § 9(h) of the then recently enacted Taft-Hartley Act.
There was no testimony that that policy changed before October 15,
The affidavit was filed shortly before a CIO convention was
scheduled to expel the Mine-Mill International and other unions
from its membership. After filing the affidavit, the petitioner and
other Local 890 officers published an article in "The Union Worker"
charging that the contemplated CIO action was part of a program
"right-wing unions . . . gobbling up chunks of militant unions.
. . . Our International Union and its officers have swallowed a lot
of guff, a lot of insults. But that is not the point. . . . Now
that our Union has signed the phony affidavits, we can defend
ourselves . . . in case of raids. We do not fear attack from that
quarter any longer."
Matusow was a member of the Communist Party of New York, and was
a paid undercover agent for the FBI before he went to New Mexico.
] In July or August,
1950, he spent a 10-day vacation on a ranch near Taos, New Mexico,
with the petitioner and a number of other people. He testified to
several conversations with the petitioner there. He said he twice
told the petitioner of his desire to transfer his membership from
the New York to the New Mexico Party, and that, on both
Page 353 U. S. 664
the petitioner applauded the idea and told him, "we can use you
out here, we need more active Party members." On one of these
occasions, Matusow said, the petitioner asked him for suggestions
for a lecture the petitioner was preparing for delivery at the
ranch, particularly as to what the New York Communists were doing
about the Stockholm Peace Appeal. Matusow described to the
petitioner a "do-day" program adopted in New York when the Party
members were doers, not talkers, and performed some activity, such
as painting signs around a baseball stadium urging support for the
Peace Appeal. He testified that the petitioner showed great
interest in the idea, and said he might bring it back to his fellow
Party members in Silver City.
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
Matusow also testified that, in one of their conversations, the
petitioner told him of a program he was developing with leaders of
the Mexican Miners Union to negotiate simultaneous expiration dates
of collective bargaining agreements, to further a joint action of
Mexican and American workers to cut off production to slow down the
Korean War effort. Matusow also testified that, when he told the
petitioner that he had joined the Taos Chapter of the
Mexican-American Association, the petitioner told him that this was
proper Communist work because the Association was a key
Page 353 U. S. 665
by the Party, for Communist activities in New Mexico, and and
that he, the petitioner, was active in the Association in the
Silver City area. [Footnote
Ford and Matusow were subjected to vigorous cross-examination
about their employment as informers for the FBI. Ford testified
that, in 1948, he went to the FBI and offered his services, which
were accepted. He thereafter regularly submitted reports to the
"sometimes once a week, sometimes once a month, and at various
other times; maybe three or four times a week, depending on the
number of meetings . . . [he] attended and the distance between the
He said that his reports were made immediately following each
meeting, while the events were still fresh in his memory. He could
not recall, however, which reports were oral and which in
The petitioner moved
"for an order directing an inspection of reports of the witness
Ford to the Federal Bureau of Investigation dealing with each of
the meetings which he said that he attended with the defendant
Jencks in the years 1948 and 1949."
The trial judge, without stating reasons, denied the motion.
Matusow, on his cross-examination, testified that he made both
oral and written reports to the FBI on events at the ranch,
including his conversations with the petitioner. The trial judge,
again without reasons, denied the motion to require
"the prosecution to produce in Court the reports submitted to
the FBI by this witness [Matusow] concerning matters which he saw
Page 353 U. S. 666
heard at the . . . Ranch during the period that he was a guest
there. . . . [Footnote
The Government opposed petitioner's motions at the trial upon
the sole ground that a preliminary foundation was not laid of
inconsistency between the contents of the reports and the testimony
of Matusow and Ford. The Court of Appeals rested the affirmance
primarily upon that ground. [Footnote 11
Both the trial court and the Court of Appeals erred. We hold
that the petitioner was not required to lay a preliminary
foundation of inconsistency, because a sufficient foundation was
established by the testimony of Matusow and Ford that their reports
were of the events and activities related in their testimony.
The reliance of the Court of Appeals upon Gordon v. United
States, 344 U. S. 414
misplaced. It is true that one fact mentioned in this Court's
opinion was that the witness admitted that the documents involved
contradicted his testimony. However, to say that Gordon
held a preliminary showing of inconsistency a prerequisite to an
accused's right to the production for inspection of documents in
the Government's possession is to misinterpret the Court's opinion.
The necessary essentials of a foundation, emphasized in that
opinion, and present
Page 353 U. S. 667
here, are that
"[t]he demand was for production of . . . specific
documents, and did not propose any broad or blind fishing
among documents possessed by the Government on the
chance that something impeaching might turn up. Nor was this a
demand for statements taken from persons or informants not offered
(Emphasis added.) 344 U.S. at 344 U. S. 419
We reaffirm and reemphasize these essentials. "For production
purposes, it need only appear that the evidence is relevant,
competent, and outside of any exclusionary rule. . . ." 344 U.S. at
344 U. S.
The crucial nature of the testimony of Ford and Matusow to the
Government's case is conspicuously apparent. The impeachment of
that testimony was singularly important to the petitioner. The
value of the reports for impeachment purposes was highlighted by
the admissions of both witnesses that they could not remember what
reports were oral and what written, and by Matusow's admission: "I
don't recall what I put in my reports two or three years ago,
written or oral, I don't know what they were."
Every experienced trial judge and trial lawyer knows the value
for impeaching purposes of statements of the witness recording the
events before time dulls treacherous memory. Flat contradiction
between the witness' testimony and the version of the events given
in his reports is not the only test of inconsistency. The omission
from the reports of facts related at the trial, or a contrast in
emphasis upon the same facts, even a different order of treatment,
are also relevant to the cross-examining process of testing the
credibility of a witness' trial testimony.
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
Page 353 U. S. 668
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. [Footnote 12
] A requirement of a showing of conflict
would be clearly incompatible with our standards for the
administration of criminal justice in the federal courts, and must
therefore be rejected. For the interest of the United States in a
criminal prosecution " . . . is not that it shall win a case, but
that justice shall be done. . . ." Berger v. United
States, 295 U. S. 78
295 U. S. 88
This Court held in Goldman v. United States,
316 U. S. 129
316 U. S. 132
that the trial judge had discretion to deny inspection when the
witness " . . . does not use his notes or memoranda [relating to
his testimony] in court. . . ." We now hold that the petitioner was
entitled to an order directing the Government to produce for
inspection all reports of Matusow and Ford in its possession,
written and, when orally made, as recorded by the FBI, touching the
events and activities as to which they testified at the trial. 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
Page 353 U. S. 669
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.
Justice requires no less. [Footnote 14
The practice of producing government documents to the trial
judge for his determination of relevancy and materiality, without
hearing the accused, is disapproved. [Footnote 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. Only after inspection of
the reports by the accused must the trial judge determine
admissibility -- e.g.,
evidentiary questions of
inconsistency, materiality, and relevancy -- of the contents and
the method to be employed for the elimination of parts immaterial
or irrelevant. See Gordon v. United States,
344 U.S. at
344 U. S.
In the courts below, the Government did not assert that the
reports were privileged against disclosure on grounds of national
security, confidential character of the reports,
Page 353 U. S. 670
public interest or otherwise. In its brief in this Court,
however, the Government argues that, absent a showing of
"[t]he rule urged by petitioner . . . disregards the legitimate
interest that each party -- including the Government -- has in
safeguarding the privacy of its files, particularly where the
documents in question were obtained in confidence. Production of
such documents, even to a court, should not be compelled in the
absence of a preliminary showing by the party making the
The petitioner's counsel, believing that Court of Appeals'
decisions imposed such a qualification, restricted his motions to a
request for production of the reports to the trial judge for the
judge's inspection and determination whether and to what extent the
reports should be made available to the petitioner.
It is unquestionably true that the protection of vital national
interests may militate against public disclosure of documents in
the Government's possession. This has been recognized in decisions
of this Court in civil causes where the Court has considered the
statutory authority conferred upon the departments of government to
adopt regulations "not inconsistent with law, for . . . use . . .
of the records, papers . . . appertaining" to his department.
] The Attorney
General has adopted regulations pursuant to this authority
declaring all Justice Department records confidential, and that no
disclosure, including disclosure in response to subpoena, may be
made without his permission. [Footnote 17
But this Court has noticed, in United States v.
Reynolds, 345 U. S. 1
holdings of the Court of Appeals
Page 353 U. S. 671
for the Second Circuit [Footnote 18
] that, in criminal causes,
". . . the Government can invoke its evidentiary privileges only
at the price of letting the defendant go free. The rationale of the
criminal cases is that, since the Government which prosecutes an
accused also has the duty to see that justice is done, it is
unconscionable to allow it to undertake prosecution and then invoke
its governmental privileges to deprive the accused of anything
which might be material to his defense. . . ."
345 U.S. at 345 U. S. 12
In United States v. Andolschek,
142 F.2d 503, 506,
Judge Learned Hand said:
". . . While we must accept it as lawful for a department of the
government to suppress documents, even when they will help
determine controversies between third persons, we cannot agree that
this should include their suppression in a criminal prosecution,
founded upon those very dealings to which the documents relate, and
whose criminality they will, or may, tend to exculpate. So far as
they directly touch the criminal dealings, the prosecution
necessarily ends any confidential character the documents may
possess; it must be conducted in the open, and will lay bare their
subject matter. The government must choose -- either it must leave
the transactions in the obscurity from which a trial will draw them
or it must expose them fully. Nor does it seem to us possible to
draw any line between documents whose contents bears directly upon
the criminal transactions and those which may be only indirectly
relevant. Not only would such a distinction be extremely difficult
to apply in practice, but the same reasons which forbid suppression
in one case forbid it in the other, though not, perhaps, quite so
imperatively. . . . "
Page 353 U. S. 672
We hold that the criminal action must be dismissed when the
Government, on the ground of privilege, elects not to comply with
an order to produce, for the accused's inspection and for admission
in evidence, relevant statements or reports in its possession of
government witnesses touching the subject matter of their testimony
at the trial. Accord, Roviaro v. United States,
353 U. S. 53
353 U. S. 60
The burden is the Government's, not to be shifted to the trial
judge, to decide whether the public prejudice of allowing the crime
to go unpunished is greater than that attendant upon the possible
disclosure of state secrets and other confidential information in
the Government's possession.
MR. JUSTICE FRANKFURTER joins the opinion of the Court, but,
deeming that the questions relating to the instructions to the jury
should be dealt with since a new trial has been directed, he agrees
with the respects in which, and the reasons for which, MR. JUSTICE
BURTON finds them erroneous.
MR. JUSTICE WHITTAKER took no part in the consideration or
decision of this case.
61 Stat. 143, 146, as amended, 65 Stat. 602, 29 U.S.C. §
Section 9(h) provides that processes of the National Labor
Relations Board will be unavailable to a labor organization
". . . unless there is on file with the Board an affidavit
executed . . . by each officer of such labor organization . . .
that he is not a member of the Communist Party or affiliated with
such party, and that he does not believe in, and is not a member of
or supports any organization that believes in or teaches, the
overthrow of the United States Government by force or by any
illegal or unconstitutional methods. . . ."
62 Stat. 749.
226 F.2d 540.
226 F.2d 553.
350 U.S. 980.
Because of our disposition of this case, it is unnecessary to
consider the alleged errors in these instructions.
From 1948 through 1953, Ford was paid $7,025 for his services.
Of that sum, approximately $3,325 covered the period to which his
Other activities of Matusow are described in Communist Party
of the United States v. Subversive Activities Control Board,
351 U. S. 115
United States v. Flynn, 130 F.
Matusow recanted as deliberately false the testimony given by
him at the trial. On the basis of this recantation, the petitioner
moved for a new trial, while his appeal from the conviction was
pending, on grounds of newly discovered evidence . After extended
hearings, the District Court denied the motion.
During the hearings on the motion for a new trial, the
petitioner made several requests for the production of documents in
the possession of the Government relating to the testimony given.
These motions were denied. 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:
". . . Upon a proper showing that the Government has possession
of such inconsistent statements and the presence of the other
requisite conditions, a person charged with crime would be
permitted to examine and use them. But no such showing was made
here. . . ."
226 F.2d at 552.
Cf. United States v. Burr,
25 Fed.Cas. 187, 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:
"Now, if a paper be in possession of the opposite party, what
statement of its contents or applicability can be expected from the
person who claims its production, he not precisely knowing its
contents? . . ."
". . . It is objected that the particular passages of the letter
which are required are not pointed out. But how can this be done
while the letter itself is withheld? . . ."
25 Fed.Cas. at 191.
United States v. Schneiderman, 106 F.
; People v. Dallabonda,
265 Mich. 486, 251
N.W. 594; see
Canon 5, American Bar Association, Canons of
Professional Ethics (1947).
Chief Justice Marshall also said in United States v.
25 Fed.Cas. 187:
"Let it be supposed that the letter may not contain anything
respecting the person now before the court. Still it may respect a
witness material in the case, and become important by bearing on
his testimony. Different representations may have been made by that
witness, or his conduct may have been such as to affect his
testimony. In various modes, a paper may bear upon the case,
although, before the case be opened, its particular application
cannot be perceived by the judge. . . ."
25 Fed.Cas. at 191.
What is true before the case is opened is equally true as the
case unfolds. The trial judge cannot perceive or determine the
relevancy and materiality of the documents to the defense without
hearing defense argument, after inspection, as to its bearing upon
See, e.g., United States v. Grayson,
166 F.2d 863, 869;
United States v. Beekman,
155 F.2d 580, 584; United
States v. Ebeling,
146 F.2d 254, 256; United States v.
145 F.2d 82, 92; United States v. Krulewitch,
145 F.2d 76, 78.
R.S. § 161, 5 U.S.C. § 22; United States v. Reynolds,
345 U. S. 1
Totten v. United States, 92 U. S. 105
Atty.Gen.Order No. 3229, 28 CFR, 1946 Supp. § 51.71 (1939);
Atty.Gen.Order No. 3229, Supp. 2, Pike & Fischer Admin.Law
(2d), Dept. of Justice 1 (1947); Atty.Gen.Order No. 3229, Rev., 18
Fed.Reg. 1368 (1953).
United States v. Beekman,
155 F.2d 580; United
States v. Andolschek,
142 F.2d 503.
MR. JUSTICE BURTON, whom MR. JUSTICE HARLAN joins, concurring in
Because of the importance of this case to the administration of
criminal justice in the federal courts, I believe it appropriate to
set forth briefly the different route by which I reach the same
result as does the Court.
Ford and Matusow, as the Court's opinion indicates, were crucial
government witnesses because their testimony supplied the principal
evidence relating to the period immediately surrounding the filing
of petitioner's allegedly false affidavit. Cross-examination
Page 353 U. S. 673
the fact that each had made oral or written reports to the
Federal Bureau of Investigation relating to the respective events
about which each had testified on direct examination. Having
established that fact, petitioner sought an order requiring the
Government to produce, for inspection by the court, the reports
relating to those matters about which each witness had testified.
The procedure to be followed was carefully specified: the court was
to determine whether the reports had evidentiary value for
impeachment of the credibility of Ford or Matusow; if the court
found that they had value for that purpose, it was then to make
them available to petitioner for his use in cross-examination. The
Government opposed each motion on the ground that no showing of
contradiction between the witness' testimony and his reports had
been made as required by a controlling Fifth Circuit decision,
Shelton v. United States,
205 F.2d 806. Apparently on that
ground, the trial court denied the motions.
Petitioner's requests were limited to a narrow category of
reports dealing with specified meetings and conversations. The
purpose of the requests -- to impeach the credibility of crucial
government witnesses -- was made clear. Petitioner did not ask to
inspect the documents himself; he sought access only to those
portions of the reports which the trial court might determine to
have evidentiary value for impeachment purposes, and to be
unprivileged. [Footnote 2/1
Page 353 U. S. 674
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, [Footnote 2/2
Court never has done so. [Footnote
] 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.
I would not, however, replace the inflexible and narrow rule
adopted by the courts below with the broader but equally rigid rule
announced by the Court. In matters relating to the production of
evidence or the scope of cross-examination, a "large discretion
must be allowed the trial judge." Goldman v. United
States, 316 U. S. 129
316 U. S. 132
Glasser v. United States, 315 U. S.
, 315 U. S. 83
Alford v. United States, 282 U. S. 687
282 U. S. 694
appropriate determination of a motion to produce reports made in
connection with the examination of a witness depends upon the
significance of the facts sought to be established,
Page 353 U. S. 675
and upon the potential use of the requested document in proving
those facts. Since that determination depends on "numerous and
subtle considerations difficult to detect or appraise from a cold
record . . . ," the trial court's discretion should be upheld in
the absence of a "clear showing of prejudicial abuse of discretion.
. . ." Cf. Michelson v. United States, 335 U.
, 335 U. S. 480
We have so held even when the documents sought to be produced have
been used at the trial for the purpose of refreshing a witness'
recollection. United States v. Socony-Vacuum Oil Co.,
310 U. S. 150
310 U. S.
-234. When the documents have not been so used and
are sought only to impeach the credibility of adverse witnesses,
and not to prove the facts stated therein, the same conclusion is
even more compelling.
The Court goes beyond the request of petitioner that reports be
produced for examination by the trial court and, in effect, seems
to hold that the Government waives any privileges it may have with
respect to documents in its possession by placing the author of
those documents on the witness stand in a criminal prosecution. The
Government's privileges with respect to state secrets and the
identity of confidential informants embody important considerations
of public policy. They are peculiar privileges in that they require
the withholding of evidence not only from the jury, but also from
the defendant. See Roviaro v. United States, 353 U. S.
(identity of informers); Reynolds v. United
States, 345 U. S. 1
secrets). Once the defendant learns the state secret or the
identity of the informer, the underlying basis for the privilege
disappears, and there usually remains little need to conceal the
privileged evidence from the jury. Thus, when the Government is a
party, the preservation of these privileges is dependent upon
nondisclosure of the privileged evidence to the defendant. This
Page 353 U. S. 676
necessary for the trial court, before disclosing the privileged
material to the defendant, to pass on the question by examining
the portions claimed to be privileged. Cf.
Bowman Dairy Co. v. United States, 341 U.
, 341 U. S. 221
There is nothing novel or unfair about such a procedure. According
to Wigmore, it is customary.
". . . it is obviously not for the witness to withhold the
documents upon his mere assertion that they are not relevant or
that they are privileged. 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. This does not deprive
the witness of any rights of privacy, since the Court's
determination is made by its own inspection, without submitting the
documents to the opponent's view.
. . ."
(Emphasis deleted and supplied.) VIII Wigmore, Evidence (3d ed.
Numerous federal decisions have followed this practice with
respect to the type of documents here involved -- contemporaneous
reports made by a government investigator or informer who later
testifies at the trial. [Footnote
] This procedure protects the legitimate public interest in
safeguarding executive files. It also respects the interests of
justice by permitting an accused to receive all information
Page 353 U. S. 677
necessary to his defense. The accused is given an opportunity to
argue that the privilege asserted by the Government is inapplicable
and that, even if applicable, his need for the evidence, under the
circumstances of the case, outweighs the Government's interest in
maintaining secrecy. The problem is closely related to that
involved in Roviaro v. United States, supra,
the necessity of the disclosure of an informer's identity in a
criminal case. There, this Court said:
"[N]o fixed rule with respect to disclosure is justifiable. The
problem is one that calls for balancing the public interest in
protecting the flow of information against the individual's right
to prepare his defense. Whether a proper balance renders
nondisclosure erroneous must depend on the particular circumstances
of each case, taking into consideration the crime charged, the
possible defenses, the possible significance of the informer's
testimony, and other relevant factors."
353 U.S. at 353 U. S. 62
The trial judge exercises his discretion with knowledge of the
issues involved in the case, the nature and importance of the
Government's interest in maintaining secrecy, and the defendant's
need for disclosure. By vesting this discretion in the trial judge,
the conflicting interests are balanced, and a just decision is
reached in the individual case without needless sacrifice of
important public interests. [Footnote
Page 353 U. S. 678
I also disagree with the Court's holding that the failure to
produce the records to petitioner necessitates a new trial.
Petitioner requested only that the records be produced to the trial
court. [Footnote 2/6
] 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. [Footnote 2/7
] Were it not
for the fact that I believe the trial court committed reversible
error in instructing the jury with respect to the meaning of
membership and affiliation, I would vacate the judgment below and
remand to the trial court with instructions to examine the reports
and to determine, in the light of the entire record, whether the
failure to produce the reports was prejudicial to petitioner.
However, I believe the trial court failed to give the jury
sufficient guidance with respect to the meaning of the phrases
"member of the Communist Party," and
Page 353 U. S. 679
"affiliated with such party" as they are used in § 9(h) of the
Labor Management Relations Act, 61 Stat. 146, 29 U.S.C. § 159(h).
The instruction given as to membership was as follows:
"In considering whether or not the defendant was a member of the
Communist Party, you may consider circumstantial evidence, as well
as direct. You may consider whether or not he attended Communist
Party meetings, whether or not he held an office in the Communist
Party, whether or not he engaged in other conduct consistent only
with membership in the Communist Party and all other evidence,
either direct or circumstantial, which bears or may bear upon the
question of whether or not he was a member of the Communist Party
on April 28, 1950."
This instruction failed to emphasize to the jury the essential
element of membership in an organized group -- the desire of an
individual to belong to the organization and a recognition by the
organization that it considers him as a member. [Footnote 2/9
The instruction on affiliation also was defective. After quoting
dictionary definitions employing synonymous words, the trial court
"Affiliation . . . means something less than membership but more
than sympathy. Affiliation with the Communist Party may be proved
by either circumstantial or direct evidence, or both."
This instruction allowed the jury to convict petitioner on the
basis of acts of intermittent cooperation. It did not require a
continuing course of conduct "on a fairly permanent basis" "that
could not be abruptly ended without
Page 353 U. S. 680
giving at least reasonable cause for the charge of a breach of
good faith." [Footnote 2/10
Because of these errors in the instructions, petitioner is
entitled to a new trial. Accordingly, I concur in the judgment of
In his brief, petitioner states:
"Petitioner asked only that the reports be produced to the trial
judge so that he could examine them and determine whether they had
evidentiary value for impeachment purposes. Petitioner sought
access only to those portions of the reports having this value. The
motion therefore proposed no broad foray into the government's
files, and afforded the judge every opportunity to protect the
government's legitimate privilege as to the matters not connected
with this case."
Scanlon v. United States,
223 F.2d 382, 385-386;
Shelton v. United States,
205 F.2d 806, 814-815;
Christoffel v. United States,
91 U.S.App.D.C. 241,
244-247, 200 F.2d 734, 737-739, reversed on other grounds,
345 U.S. 947; D'Aquino v. United States,
192 F.2d 338,
375; United States v. De Normand,
149 F.2d 622, 625-626;
United States v. Ebeling,
146 F.2d 254, 257; Little v.
93 F.2d 401; Arnstein v. United
54 App.D.C. 199, 203, 296 F. 946, 950.
In Gordon v. United States, 344 U.
, the petitioners had shown that written
statements given to government agents by a key government witness
contradicted the witness' trial testimony. In holding the the trial
court erred in denying petitioners' motion for the production and
inspection of these statements, the Court was deciding that case on
its facts. I do not regard it as establishing a rule that a showing
of contradiction is an essential element of the foundation
precedent to production.
See, e.g., United States v. Coplon,
185 F.2d 629, 638;
United States v. Beekman,
155 F.2d 580, 584; United
States v. Cohen,
145 F.2d 82, 92; United States v.
145 F.2d 76, 79; United States v.
Flynn, 130 F.
; United States v. Mesarosh, 116 F.
, 350; United States v.
Schneiderman, 106 F.
Privileged material sometimes can be excised from the reports
without destroying their value to the defendant. Only when deletion
is impracticable is the court compelled to choose between
disclosing the document as a whole and withholding it completely.
Material withheld from the defendant should be sealed as part of
the record so that an appellate court may review the action of the
trial court and correct any abuse of discretion.
fn2/1|>n. 1, supra.
Rule 52(a) of the Federal Rules of Criminal Procedure provides:
"Any error, defect, irregularity or variance which does not affect
substantial rights shall be disregarded." See Lutwak v. United
States, 344 U. S. 604
344 U. S. 619
Kotteakos v. United States, 328 U.
, 328 U. S.
-777. There are many cases in which nonproduction of
documents has been held to be harmless error. Three comparatively
recent cases, dealing with reports of law enforcement officers, are
United States v. Sansone,
231 F.2d 887; Montgomery v.
203 F.2d 887, 893-894; and Bundy v. United
90 U.S.App.D.C. 12, 193 F.2d 694.
The trial court is the appropriate forum to consider the
possible prejudicial effect of the error. See, e.g., Communist
Party of the United States v. Subversive Activities Control
Board, 351 U. S. 115
Remmer v. United States, 347 U. S. 227
Fisher v. United States,
231 F.2d 99, 106-107. See
also Ocon v. Guercio,
237 F.2d 177; Baghdasarian v. United
220 F.2d 677; Sigurdson v. Landon,
791; Dickhoff v. Shaughnessy, 142 F.
United States ex rel. Kettunen v. Reimer,
79 F.2d 315,
317. See also Bridges v. Wixon, 326 U.
; Fisher v. United States,
231 F.2d 99,
MR. JUSTICE CLARK, dissenting.
The Court holds
"that the criminal action must be dismissed when the Government,
on the grounds of privilege, elects not to comply with an order to
produce, for the accused's inspection and for admission in
evidence, relevant statements or reports in its possession of
government witnesses touching the subject matter of their testimony
at the trial."
This fashions a new rule of evidence which is foreign to our
federal jurisprudence. The rule has always been to the contrary. It
seems to me that proper judicial administration would require that
the Court expressly overrule Goldman v. United States,
316 U. S. 129
316 U. S. 132
(1942), which is contra
to the rule announced today. But
that is not done. That case is left on the books to haunt lawyers
and trial courts in their search for the proper rule. In
the Court was unanimous on the issue of
disclosure of documents [Footnote
] and refused to order produced "notes and memoranda made by
the [federal] agents during the investigation." The rule announced
today has no support in any of our cases. [Footnote 3/2
Page 353 U. S. 681
Every federal judge and every lawyer of federal experience knows
that it is not the present rule. Even the defense attorneys did not
have the temerity to ask for such a sweeping decision. They only
asked that the documents be delivered to the judge for his
determination of whether the defendant should be permitted to
examine them. This is the procedure followed in some of our
circuits. My Brother BURTON has clearly stated in his concurring
opinion the manner in which this procedure works. Perhaps here,
with a recanting witness, the trial judge should have examined the
specific documents called for, as the defense requested, and if he
thought justice required their delivery to the defense, order such
delivery to be made. I would have no objection to this being done.
But, as Brother BURTON points out, this would not require a
reversal, but merely a vacation of the judgment and a remand to the
trial court for that purpose.
Unless the Congress changes the rule announced by the Court
today, those intelligence agencies of our Government engaged in law
enforcement may as well close up shop, for the Court has opened
their files to the criminal and thus afforded him a Roman holiday
Page 353 U. S. 682
through confidential information as well as vital national
secrets. This may well be a reasonable rule in state prosecutions
where none of the problems of foreign relations, espionage,
sabotage, subversive activities, counterfeiting, internal security,
national defense, and the like exist, but any person conversant
with federal government activities and problems will quickly
recognize that it opens up a veritable Pandora's box of troubles.
And all in the name of justice. For over eight score years now, our
federal judicial administration has gotten along without it, and
today that administration enjoys the highest rank in the world.
Director J. Edgar Hoover, back in 1950, tellingly pointed this
out before a Subcommittee of the Committee on Foreign Relations of
the United States Senate. Among other things he said,
"I have always maintained the view that, if we were to fully
discharge the serious responsibilities imposed upon us, the
confidential character of our files must be inviolate. . . .
[U]nless we drastically change or circumscribe our procedures, they
should not be disclosed."
In describing the files of the Bureau, he continued:
"FBI reports set forth all details secured from a witness. If
those details were disclosed, they could become subject to
misinterpretation, they could be quoted out of context, or they
could be used to thwart truth, distort half-truths, and
misrepresent facts. The raw material, the allegations, the details
of associations, and compilation of information . . . are of value
to an investigator in the discharge of his duty. These files were
never intended to be used in any other manner, and the public
interest would not be served by the disclosure of their
"These files contain complaints, allegations, facts, and
statements of all persons interviewed. Depending upon the purpose
of the investigation, particularly
Page 353 U. S. 683
in security cases, they contain not only background data on the
individual, but details of his private life . . . , the identities
of our confidential sources of information, and full details of
investigative techniques. In short, they consist of a running
account of all that transpires."
"* * * *"
". . . For want of a more apt comparison, our files can be
compared to the notes of a newspaper reporter before he has culled
through the printable material from the unprintable. The files do
not consist of proven information alone. . . . One report may
allege crimes of a most despicable type, and the truth or falsity
of these charges may not emerge until several reports are studied,
further investigation made, and the what separated from the
"If spread upon the record, criminals, foreign agents,
subversives, and others would be forewarned, and would seek methods
to carry out their activities by avoiding detection, and thus
defeat the very purposes for which the FBI was created."
Hearings before a Subcommittee of the Senate Committee on
Foreign Relations on S. Res. 231, 81st Cong., 2d Sess. 327-329. I
can add nothing to this graphic expression of the necessity for the
existence of the rule which, until today, kept inviolate
My Brother BURTON's concurrence also points up the failure of
the majority to pass upon another important question involved,
namely, the sufficiency of the trial judge's instructions. The
impact of this failure on him and on my Brother FRANKFURTER was
such that they have announced their own views though the majority
never reaches the point. For myself alone, I believe that
Page 353 U. S. 684
the instructions on the whole were sufficient. It is unfortunate
that the majority does not announce its position. This is only one
of some 10 Communist affidavit cases now pending in the trial and
appellate courts. Unless this case goes as did Gold's, [Footnote 3/3
] the question of the
sufficiency of instructions will come up in this as well as in each
of the other cases. The Court is sorely divided on this important
issue and proper judicial administration requires that charges as
to what constitutes membership and affiliation in the Communist
Party be announced.
Though the Court was divided on an issue not here material, the
two dissenting opinions expressed no disagreement whatsoever on the
The opinion cites only two of our cases for support. The
quotations from Gordon v. United States, 344 U.
(1953), an opinion by my late Brother Jackson, a
former Solicitor General and Attorney General, are lifted entirely
out of context. The case holds explicitly that documents must be
produced only after a foundation is laid
"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 issue being tried: the
participation of the accused in the crime."
at 344 U. S.
-419. Likewise, United States v. Reynolds,
345 U. S. 1
by my late Brother Chief Justice Vinson, approved the refusal of
the Government to produce documents in a tort claims suit. The
opinion gave no approval whatever to the conclusion announced by
the majority here. I purposely omitted the reference in the opinion
after the penultimate sentence, "Accord, Roviaro v. United
States, 353 U. S. 53
353 U. S.
-61." That case had to do with the disclosure of a
dead informant's name and did not touch on the problem of the
disclosure of government documents.
In Gold v. United States, 352 U.
(1957), this Court reversed and remanded the case
for a new trial because of official intrusion into the privacy of
the jury. The case was dismissed on oral motion of the Government
on May 9, 1957.