During respondent's federal criminal trial, which resulted in a
conviction, defense counsel sought to impeach the credibility of
key prosecution witnesses by testimony of a defense investigator
regarding statements previously obtained from the witnesses by the
investigator. When the investigator was called as a witness, the
District Court stated that a copy of the investigator's report,
inspected and edited by the court
in camera so as to
excise references to matters not relevant to such statements, would
have to be submitted to the prosecution for inspection at the
completion of the investigator's testimony. When defense counsel
said he did not intend to produce the report, the court ruled that
the investigator could not testify about his interviews with the
witnesses. The Court of Appeals, considering such ruling to be
reversible error, held that both the Fifth Amendment and Fed.Rule
Crim.Proc. 16 prohibited the disclosure condition imposed.
Held:
1. In a proper case, the prosecution, as well as the defense,
can invoke the federal judiciary's inherent power to require
production of previously recorded witness statements that
facilitate full disclosure of all the relevant facts. Here, the
investigator's report might provide critical insight into the
issues of credibility that the investigator's testimony would
raise, and hence was highly relevant to such issues. Pp.
422 U. S.
230-232.
2. The Fifth Amendment privilege against compulsory
self-incrimination, being personal to the defendant, does not
extend to the testimony or statements of third parties called as
witnesses at trial. In this instance, the fact that the statements
of third parties were elicited by a defense investigator on
respondent's behalf does not convert them into respondent's
personal communications, and requiring their production would in no
sense compel respondent to be a witness against himself or extort
communications from him. Pp.
422 U. S.
233-234.
3. Rule 16, whose language and history both indicate that it
addresses only pretrial discovery, imposes no constraint on the
Page 422 U. S. 226
District Court's power to condition the impeachment testimony of
respondent's witness on the production of the relevant portions of
his report. The fact that the Rule incorporates the Jencks Act
limitation shows no contrary intent, and does not convert the Rule
into a general limitation on the trial court's broad discretion as
to evidentiary questions at trial. Pp.
422 U. S.
234-236.
4. The qualified privilege derived from the attorney work
product doctrine is not available to prevent disclosure of the
investigative report, since respondent, by electing to present the
investigator as a witness, waived the privilege with respect to
matters covered in his testimony. Pp.
422 U. S.
236-240.
5. It was within the District Court's discretion to assure that
the jury would hear the investigator's full testimony, rather than
a truncated portion favorable to respondent, and the court's
ruling, contrary to respondent's contention, did not deprive him of
the Sixth Amendment rights to compulsory process and
cross-examination. That Amendment does not confer the right to
present testimony free from the legitimate demands of the
adversarial system, and cannot be invoked as a justification for
presenting what might have been a half-truth. Pp.
422 U. S.
240-241.
501 F.2d 146, reversed.
POWELL, J., delivered the opinion of the Court, in which BURGER,
C.J., and BRENNAN, STEWART, MARSHALL, and BLACKMUN, JJ., joined,
and in parts II, III, and V of which WHITE and REHNQUIST, JJ.,
joined. WHITE, J., filed a concurring opinion, in which REHNQUIST,
J., joined,
post, p.
422 U. S. 242.
DOUGLAS, J., took no part in the consideration or decision of the
case.
Page 422 U. S. 227
MR. JUSTICE POWELL delivered the opinion of the Court.
In a criminal trial, defense counsel sought to impeach the
credibility of key prosecution witnesses by testimony of a defense
investigator regarding statements previously obtained from the
witnesses by the investigator. The question presented here is
whether, in these circumstances, a federal trial court may compel
the defense to reveal the relevant portions of the investigator's
report for the prosecution's use in cross-examining him. The United
States Court of Appeals for the Ninth Circuit concluded that it
cannot. 501 F.2d 146. We granted certiorari, 419 U.S. 1120 (1975),
and now reverse.
I
Respondent was tried and convicted on charges arising from an
armed robbery of a federally insured bank. The only significant
evidence linking him to the crime was the identification testimony
of two witnesses, a bank teller and a salesman who was in the bank
during the robbery. [
Footnote
1] Respondent offered an alibi but, as the Court of Appeals
recognized, 501 F.2d at 150, his strongest defense centered around
attempts to discredit these eyewitnesses. Defense efforts to
impeach them gave rise to the events that led to this decision.
In the course of preparing respondent's defense, an investigator
for the defense interviewed both witnesses and preserved the
essence of those conversations in a written report. When the
witnesses testified for the prosecution, respondent's counsel
relied on the report in conducting their cross-examination. Counsel
asked the bank
Page 422 U. S. 228
teller whether he recalled having told the investigator that he
had seen only the back of the man he identified as respondent. The
witness replied that he did not remember making such a statement.
He was allowed, despite defense counsel's initial objection, to
refresh his recollection by referring to a portion of the
investigator's report. The prosecutor also was allowed to see
briefly the relevant portion of the report. [
Footnote 2] The witness thereafter testified that,
although the report indicated that he told the investigator he had
seen only respondent's back, he, in fact, had seen more than that,
and continued to insist that respondent was the bank robber.
The other witness acknowledged on cross-examination that he too
had spoken to the defense investigator. Respondent's counsel twice
inquired whether he told the investigator that "all blacks looked
alike" to him, and in each instance the witness denied having made
such a statement. The prosecution again sought inspection of the
relevant portion of the investigator's report, and respondent's
counsel again objected. The court declined to order disclosure at
that time, but ruled that it would be required if the investigator
testified as to the witnesses' alleged statements from the witness
stand. [
Footnote 3] The
Page 422 U. S. 229
court further advised that it would examine the investigator's
report
in camera, and would excise all reference to
matters not relevant to the precise statements at issue.
After the prosecution completed its case, respondent called the
investigator as a defense witness. The court reiterated that a copy
of the report, inspected and edited
in camera, would have
to be submitted to Government counsel at the completion of the
investigator's impeachment testimony. When respondent's counsel
stated that he did not intend to produce the report, the court
ruled that the investigator would not be allowed to testify about
his interviews with the witnesses. [
Footnote 4]
The Court of Appeals for the Ninth Circuit, while acknowledging
that the trial court's ruling constituted a "very limited and
seemingly judicious restriction," 501 F.2d at 151, nevertheless
considered it reversible
Page 422 U. S. 230
error. Citing
United States v. Wright, 160 U.S.App.D.C.
57, 68, 489 F.2d 1181, 1192 (1973), the court found that the Fifth
Amendment prohibited the disclosure condition imposed in this case.
The court further held that Fed.Rule Crim.Proc. 16, while framed
exclusively in terms of pretrial discovery, precluded prosecutorial
discovery at trial as well. 501 F.2d at 157;
accord, United
States v. Wright, supra at 66-67, 489 F.2d at 1190-1191. In
each respect, we think the court erred.
II
The dual aim of our criminal justice system is "that guilt shall
not escape or innocence suffer,"
Berger v. United States,
295 U. S. 78,
295 U. S. 88
(1935). To this end, we have placed our confidence in the adversary
system, entrusting to it the primary responsibility for developing
relevant facts on which a determination of guilt or innocence can
be made.
See United States v. Nixon, 418 U.
S. 683,
418 U. S. 709
(1974);
Williams v. Florida, 399 U. S.
78,
399 U. S. 82
(1970);
Elkins v. United States, 364 U.
S. 206,
364 U. S. 234
(1960) (Frankfurter, J., dissenting).
While the adversary system depends primarily on the parties for
the presentation and exploration of relevant facts, the judiciary
is not limited to the role of a referee or supervisor. Its
compulsory processes stand available to require the presentation of
evidence in court or before a grand jury.
United States v.
Nixon, supra; Kastigar v. United States, 406 U.
S. 441,
406 U. S.
443-444 (1972);
Murphy v. Waterfront Comm'n,
378 U. S. 52,
378 U. S. 93-9,4
(1964) (WHITE, J., concurring). As we recently observed in
United States v. Nixon, supra at
418 U. S.
709:
"We have elected to employ an adversary system of criminal
justice in which the parties contest all issues before a court of
law. The need to develop all relevant facts in the adversary system
is both
Page 422 U. S. 231
fundamental and comprehensive. The ends of criminal justice
would be defeated if judgments were to be founded on a partial or
speculative presentation of the facts. The very integrity of the
judicial system and public confidence in the system depend on full
disclosure of all the facts, within the framework of the rules of
evidence. To ensure that justice is done, it is imperative to the
function of courts that compulsory process be available for the
production of evidence needed either by the prosecution or by the
defense."
Decisions of this Court repeatedly have recognized the federal
judiciary's inherent power to require the prosecution to produce
the previously recorded statements of its witnesses so that the
defense may get the full benefit of cross-examination and the
truthfinding process may be enhanced.
See, e.g., Jencks v.
United States, 353 U. S. 657
(1957); [
Footnote 5]
Gordon
v. United States, 34 U. S. 414
(1953);
Goldman v. United States, 316 U.
S. 129 (1942);
Palermo v. United States,
360 U. S. 343,
360 U. S. 361
(1959) (BRENNAN, J., concurring in result). At issue here is
whether, in a proper case, the prosecution can call upon that same
power for production of witness statements that facilitate "full
disclosure of all the [relevant] facts."
United States v.
Nixon, supra, at
418 U. S.
709.
In this case, the defense proposed to call its investigator to
impeach the identification testimony of the prosecution's
eyewitnesses. It was evident from cross-examination that the
investigator would testify that each witness' recollection of the
appearance of the individual identified as respondent was
considerably less clear at
Page 422 U. S. 232
an earlier time than it was at trial. It also appeared that the
investigator and one witness differed even as to what the witness
told him during the interview. The investigator's contemporaneous
report might provide critical insight into the issues of
credibility that the investigator's testimony would raise. It could
assist the jury in determining the extent to which the
investigator's testimony actually discredited the prosecution's
witnesses. If, for example, the report failed to mention the
purported statement of one witness that "all blacks looked alike,"
the jury might disregard the investigator's version altogether. On
the other hand, if this statement appeared in the contemporaneously
recorded report, it would tend strongly to corroborate the
investigator's version of the interview, and to diminish
substantially the reliability of that witness' identification.
[
Footnote 6]
It was therefore apparent to the trial judge that the
investigator's report was highly relevant to the critical issue of
credibility. In this context, production of the report might
substantially enhance "the search for truth,"
Williams v.
Florida, 399 U.S. at
399 U. S. 82. We
must determine whether compelling its production was precluded by
some privilege available to the defense in the circumstances of
this case.
Page 422 U. S. 233
III
A
The Court of Appeals concluded that the Fifth Amendment renders
criminal discovery "basically a one-way street." 501 F.2d at 154.
Like many generalizations in constitutional law, this one is too
broad. The relationship between the accused's Fifth Amendment
rights and the prosecution's ability to discover materials at trial
must be identified in a more discriminating manner.
The Fifth Amendment privilege against compulsory
self-incrimination is an "intimate and personal one," which
protects "a private inner sanctum of individual feeling and thought
and proscribes state intrusion to extract self-condemnation."
Couch v. United States, 409 U. S. 322,
409 U. S. 327
(1973);
see also Bellis v. United States, 417 U. S.
85,
417 U. S. 90-91
(1974);
United States v. White, 322 U.
S. 694,
322 U. S. 698
(1944). As we noted in
Couch, supra, at
409 U. S. 328,
the "privilege is a personal privilege: it adheres basically to the
person, not to information that may incriminate him." [
Footnote 7]
In this instance, disclosure of the relevant portions of the
defense investigator's report would not impinge on the fundamental
values protected by the Fifth Amendment. The court's order was
limited to statements
Page 422 U. S. 234
allegedly made by third parties who were available as witnesses
to both the prosecution and the defense. Respondent did not prepare
the report, and there is no suggestion that the portions subject to
the disclosure order reflected any information that he conveyed to
the investigator. The fact that these statements of third parties
were elicited by a defense investigator on respondent's behalf does
not convert them into respondent's personal communications.
Requiring their production from the investigator therefore would
not in any sense compel respondent to be a witness against himself
or extort communications from him.
We thus conclude that the Fifth Amendment privilege against
compulsory self-incrimination, being personal to the defendant,
does not extend to the testimony or statements of third parties
called as witnesses at trial. The Court of Appeals' reliance on
this constitutional guarantee as a bar to the disclosure here
ordered was misplaced.
B
The Court of Appeals also held that Fed.Rule Crim.Proc. 16
deprived the trial court of the power to order disclosure of the
relevant portions of the investigator's report. [
Footnote 8] Acknowledging that the Rule
appears to control pretrial discovery only, the court nonetheless
determined
Page 422 U. S. 235
that its reference to the Jencks Act, 18 U.S.C. § 3500, signaled
an intention that Rule 16 should control trial practice as well. We
do not agree.
Both the language and history of Rule 16 indicate that it
addresses only pretrial discovery. Rule 16(f) requires that a
motion for discovery be filed "within 10 days after arraignment or
. . . such reasonable later time as the court may permit," and
further commands that it include all relief sought by the movant.
When this provision is viewed in light of the Advisory Committee's
admonition that it is designed to encourage promptness in filing
and to enable the district court to avoid unnecessary delay or
multiplication of motions,
see Advisory Committee's Notes
on Rule 16, 18 U.S.C.App. p. 4494, the pretrial focus of the Rule
becomes apparent. The Government's right of discovery arises only
after the defendant has successfully sought discovery under
subsections (a)(2) or (b), and is confined to matters "which the
defendant intends to produce at the trial." Fed.Rule Crim.Proc.
16(c). This hardly suggests any intention that the Rule would limit
the court's power to order production once trial has begun.
[
Footnote 9] Finally, the
Advisory Committee's Notes emphasize its pretrial character. Those
notes repeatedly characterize the Rule as a provision governing
pretrial disclosure, never once suggesting that it was intended to
constrict a district court's
Page 422 U. S. 236
control over evidentiary questions arising at trial. 18
U.S.C.App. pp. 4493-4495.
The incorporation of the Jencks Act limitation on the pretrial
right of discovery provided by Rule 16 does not express a contrary
intent. It only restricts the defendant's right of pretrial
discovery in a manner that reconciles that provision with the
Jencks Act limitation on the trial court's discretion over
evidentiary matters. It certainly does not convert Rule 16 into a
general limitation on the trial court's broad discretion as to
evidentiary questions at trial.
Cf. Giles v. Maryland,
386 U. S. 66,
386 U. S. 101
(1967) (Fortas, J., concurring in judgment). [
Footnote 10] We conclude, therefore, that Rule
16 imposes no constraint on the District Court's power to condition
the impeachment testimony of respondent's witness on the production
of the relevant portions of his investigative report. In extending
the Rule into the trial context, the Court of Appeals erred.
IV
Respondent contends further that the work product doctrine
exempts the investigator's report from disclosure at trial. While
we agree that this doctrine applies to criminal litigation as well
as civil, we find its protection unavailable in this case.
The work product doctrine, recognized by this Court in
Hickman v. Taylor, 329 U. S. 495
(1947), reflects the strong "public policy underlying the orderly
prosecution
Page 422 U. S. 237
and defense of legal claims."
Id. at
329 U. S. 510;
see also id. at
329 U. S.
514-515 (Jackson, J., concurring). As the Court there
observed:
"Historically, a lawyer is an officer of the court, and is bound
to work for the advancement of justice while faithfully protecting
the rightful interests of his clients. In performing his various
duties, however, it is essential that a lawyer work with a certain
degree of privacy, free from unnecessary intrusion by opposing
parties and their counsel. Proper preparation of a client's case
demands that he assemble information, sift what he considers to be
the relevant from the irrelevant facts, prepare his legal theories,
and plan his strategy without undue and needless interference. That
is the historical and the necessary way in which lawyers act within
the framework of our system of jurisprudence to promote justice and
to protect their clients' interests. This work is reflected, of
course, in interviews, statements, memoranda, correspondence,
briefs, mental impressions, personal beliefs, and countless other
tangible and intangible ways -- aptly though roughly termed by the
Circuit Court of Appeals in this case as the 'work product of the
lawyer.' Were such materials open to opposing counsel on mere
demand, much of what is now put down in writing would remain
unwritten. An attorney's thoughts, heretofore inviolate, would not
be his own. Inefficiency, unfairness and sharp practices would
inevitably develop in the giving of legal advice and in the
preparation of cases for trial. The effect on the legal profession
would be demoralizing. And the interests of the clients and the
cause of justice would be poorly served."
Id. at
329 U. S.
510-511. The Court therefore recognized a qualified
privilege for
Page 422 U. S. 238
certain materials prepared by an attorney "acting for his client
in anticipation of litigation."
Id. at
329 U. S. 508.
[
Footnote 11]
See
generally 4 J. Moore, Federal Practice � 26.63 (2d ed.1974);
E. Cleary, McCormick on Evidence 204-209 (2d ed.1972); Note,
Developments in the Law -- Discovery, 74 Harv.L.Rev. 940, 1027-1046
(1961).
Although the work product doctrine most frequently is asserted
as a bar to discovery in civil litigation, its role in assuring the
proper functioning of the criminal justice system is even more
vital. The interests of society and the accused in obtaining a fair
and accurate resolution of the question of guilt or innocence
demand that adequate safeguards assure the thorough preparation and
presentation of each side of the case. [
Footnote 12]
At its core, the work product doctrine shelters the mental
processes of the attorney, providing a privileged area within which
he can analyze and prepare his client's case. But the doctrine is
an intensely practical one, grounded in the realities of litigation
in our adversary system. One of those realities is that attorneys
often must rely on the assistance of investigators and other agents
in the compilation of materials in preparation for trial. It is
therefore necessary that the doctrine protect material prepared by
agents for the attorney as
Page 422 U. S. 239
well as those prepared by the attorney himself. [
Footnote 13] Moreover, the concerns
reflected in the work product doctrine do not disappear once trial
has begun. Disclosure of an attorney's efforts at trial, as surely
as disclosure during pretrial discovery, could disrupt the orderly
development and presentation of his case. We need not, however,
undertake here to delineate the scope of the doctrine at trial,
for, in this instance, it is clear that the defense waived such
right as may have existed to invoke its protections.
The privilege derived from the work product doctrine is not
absolute. Like other qualified privileges, it may be waived. Here,
respondent sought to adduce the testimony of the investigator and
contrast his recollection of the contested statements with that of
the prosecution's witnesses. Respondent, by electing to present the
investigator as a witness, waived the privilege with respect to
matters covered in his testimony. [
Footnote 14] Respondent
Page 422 U. S. 240
can no more advance the work product doctrine to sustain a
unilateral testimonial use of work product materials than he could
elect to testify in his own behalf and thereafter assert his Fifth
Amendment privilege to resist cross-examination on matters
reasonably related to those brought out in direct examination.
See, e.g., McGautha v. California, 402 U.
S. 183,
402 U. S. 215
(1971). [
Footnote 15]
V
Finally, our examination of the record persuades us that the
District Court properly exercised its discretion in this instance.
The court authorized no general "fishing expedition" into the
defense files, or indeed even into the defense investigator's
report.
Cf. United States v. Wright, 160 U.S.App.D.C. 57,
489 F.2d 1181 (1973). Rather, its considered ruling was quite
limited in scope, opening to prosecution scrutiny only the portion
of the report that related to the testimony the investigator would
offer to discredit the witnesses' identification testimony. The
court further afforded respondent the maximum
Page 422 U. S. 241
opportunity to assist in avoiding unwarranted disclosure or to
exercise an informed choice to call for the investigator's
testimony, and thereby open his report to examination.
The court's preclusion sanction was an entirely proper method of
assuring compliance with its order. Respondent's argument that this
ruling deprived him of the Sixth Amendment rights to compulsory
process and cross-examination misconceives the issue. The District
Court did not bar the investigator's testimony.
Cf. Washington
v. Texas, 388 U. S. 14,
388 U. S. 19
(1967). It merely prevented respondent from presenting to the jury
a partial view of the credibility issue by adducing the
investigator's testimony and thereafter refusing to disclose the
contemporaneous report that might offer further critical insights.
The Sixth Amendment does not confer the right to present testimony
free from the legitimate demands of the adversarial system; one
cannot invoke the Sixth Amendment as a justification for presenting
what might have been a half-truth. Deciding, as we do, that it was
within the court's discretion to assure that the jury would hear
the full testimony of the investigator, rather than a truncated
portion favorable to respondent, we think it would be artificial
indeed to deprive the court of the power to effectuate that
judgment. Nor do we find constitutional significance in the fact
that the court in this instance was able to exclude the testimony
in advance, rather than receive it in evidence and thereafter
charge the jury to disregard it when respondent's counsel refused,
as he said he would, to produce the report. [
Footnote 16]
Page 422 U. S. 242
The judgment of the Court of Appeals for the Ninth Circuit is
therefore
Reversed.
MR. JUSTICE DOUGLAS took no part in the consideration or
decision of this case.
[
Footnote 1]
The only other evidence introduced against respondent was a
statement made at the time of arrest in which he denied that he was
Robert Nobles and subsequently stated that he knew that the FBI had
been looking for him.
[
Footnote 2]
Counsel for the Government complained that the portion of the
report produced at this time was illegible. The witness testimony
indicates, however, that he had no difficulty reading it.
[
Footnote 3]
The essence of the District courts order was as follows:
"[If the investigator] is allowed to testify, it would be
necessary that those portions of [the] investigative report which
contain the statements of the impeached witness will have to be
turned over to the prosecution; nothing else in that report."
"
* * * *"
"If he testifies in any way about impeaching statements made by
either of the two witnesses, then it is the Court's view that the
government is entitled to look at his report and only those
portions of that report which contain the alleged impeaching
statements . . . of the witnesses."
App. 31.
[
Footnote 4]
Although the portion of the report containing the bank teller's
alleged statement previously was revealed and marked for
identification, it was not introduced into evidence. When the
discussion of the investigator's testimony subsequently arose,
counsel for the Government noted that he had only a limited
opportunity to glance at the statement, and he then requested
disclosure of that portion of the report as well as the statement
purportedly made by the salesman.
As indicated above, the bank teller did not deny having made the
statement recorded in the investigator's report. It is thus
possible that the investigator's testimony on that point would not
have constituted an impeachment of the statements of that witness
within the contemplation of the court's order, and would not have
given rise to a duty of disclosure. Counsel did not pursue this
point, however, and did not seek further clarification of the
issue. Respondent does not, and, in view of the failure to develop
the issue at trial, could not, urge this as a ground for reversal.
Nor does respondent maintain that the initial disclosure of the
bank teller's statement sufficed to satisfy the court's order. We
therefore consider each of the two alleged statements in the report
to be impeaching statements that would have been subject to
disclosure if the investigator had testified about them.
[
Footnote 5]
The discretion recognized by the Court in
Jencks
subsequently was circumscribed by Congress in the so-called Jencks
Act, 18 U.S.C. § 3500.
See generally Palermo v. United
States, 360 U. S. 343
(1959)
[
Footnote 6]
Rule 612 of the new Federal Rules of Evidence entitles an
adverse party to inspect a writing relied on to refresh the
recollection of a witness while testifying. The Rule also
authorizes disclosure of writings relied on to refresh recollection
before testifying if the court deems it necessary in the interests
of justice. The party obtaining the writing thereafter can use it
in cross-examining the witness, and can introduce into evidence
those portions that relate to the witness' testimony. As the
Federal Rules of Evidence were not in effect at the time of
respondent's trial, we have no occasion to consider them or their
applicability to the situation here presented.
[
Footnote 7]
"The purpose of the relevant part of the Fifth Amendment is to
prevent compelled self-incrimination, not to protect private
information. Testimony demanded of a witness may be very private
indeed, but unless it is incriminating and protected by the
Amendment, or unless protected by one of the evidentiary
privileges, it must be disclosed."
Maness v. Meyers, 419 U. S. 449,
419 U. S.
473-474 (1975) (WHITE, J., concurring in result).
Moreover, the constitutional guarantee protects only against forced
individual disclosure of a "testimonial or communicative nature,"
Schmerber v. California, 384 U. S. 757,
384 U. S. 761
(1966);
see also United States v. Wade, 388 U.
S. 218,
388 U. S. 222
(1967);
Gilbert v. California, 388 U.
S. 263 (1967).
[
Footnote 8]
Rule 16(c), which establishes the Government's reciprocal right
of pretrial discovery, excepts
"reports, memoranda, or other internal defense documents made by
the defendant, or his attorneys or agents in connection with the
investigation or defense of the case, or of statements made by the
defendant, or by government or defense witnesses, or by prospective
government or defense witnesses, to the defendant, his agents or
attorneys."
That Rule therefore would not authorize pretrial discovery of
the investigator's report. The proposed amendments to the Federal
Rules of Criminal Procedure leave this subsection substantially
unchanged.
See Proposed Rule 16 of Criminal Procedure, 62
F.R.D. 271, 305-306 (1974).
[
Footnote 9]
Rule 16(g) imposes a duty to notify opposing counsel or the
court of the additional materials previously requested or inspected
that are subject to discovery or inspection under the Rule, and it
contemplates that this obligation will continue during trial. The
obligation under Rule 16(g) depends, however, on a previous request
for or order of discovery. The fact that this provision may have
some effect on the parties' conduct during trial does not convert
the Rule into a general limitation on the court's inherent power to
control evidentiary matters.
[
Footnote 10]
We note also that the commentators who have considered Rule 16
have not suggested that it is directed to the court's control of
evidentiary questions arising at trial.
See, e.g., Nakell,
Criminal Discovery for the Defense and the Prosecution -- the
Developing Constitutional Considerations, 50 N.C.L.Rev. 437,
494-514 (1972); Rezneck, The New Federal Rules of Criminal
Procedure, 54 Geo.L.J. 1276, 1279, 1282 n.19 (1966); Note,
Prosecutorial Discovery Under Proposed Rule 16, 85 Harv.L.Rev. 994
(1972).
[
Footnote 11]
As the Court recognized in
Hickman v. Taylor, 329 U.S.
at
329 U. S. 508,
the work product doctrine is distinct from and broader than the
attorney-client privilege.
[
Footnote 12]
A number of state and federal decisions have recognized the role
of the work product doctrine in the criminal law, and have applied
its protections to the files of the prosecution and the accused
alike.
See, e.g., State v. Bowen, 104 Ariz. 138,
449 P.2d 603,
cert. denied, 396 U.S. 912 (1969);
State ex rel.
Polley v. Superior Ct. of Santa Cruz County, 81 Ariz. 127,
302 P.2d 263
(1956);
Peel v. State, 154 So. 2d 910 (Fla.App. 1963);
In re Grand Jury Proceedings (Duffy v. United States), 473
F.2d 840 (CA8 1973);
In re Terkeltoub, 256 F.
Supp. 683 (SDNY 1966).
[
Footnote 13]
The sole issue in Hickman related to materials prepared by an
attorney, and courts thereafter disagreed over whether the doctrine
applied as well to materials prepared on his behalf.
See
Proposed Amendments to the Federal Rules of Civil Procedure
Relating to Discovery, 48 F.R.D. 487, 501 (1970); 4 J. Moore,
Federal Practice � 26.63 [8] (2d ed.1974). Necessarily, it must.
This view is reflected in the Federal Rules of Civil Procedure,
see Rule 26(b)(3), and in Rule 16 of the Criminal Rules,
as well,
see Rules 16(b) and (c);
cf. E. Cleary,
McCormick on Evidence 208 (2d ed.1972).
[
Footnote 14]
What constitutes a waiver with respect to work product materials
depends, of course, upon the circumstances. Counsel necessarily
makes use throughout trial of the notes, documents, and other
internal materials prepared to present adequately his client's
case, and often relies on them in examining witnesses. When so
used, there normally is no waiver. But where, as here, counsel
attempts to make a testimonial use of these materials, the normal
rules of evidence come into play with respect to cross-examination
and production of documents.
[
Footnote 15]
We cannot accept respondent's contention that the disclosure
order violated his Sixth Amendment right to effective assistance of
counsel. This claim is predicated on the assumption that disclosure
of a defense investigator's notes in this and similar cases will
compromise counsel's ability to investigate and prepare the defense
case thoroughly. Respondent maintains that even the limited
disclosure required in this case will impair the relationship of
trust and confidence between client and attorney and will inhibit
other members of the "defense team" from gathering information
essential to the effective preparation of the case.
See
American Bar Association Project on Standards for Criminal Justice,
The Defense Function § 3.1(a) (App.Draft 1971). The short answer is
that the disclosure order resulted from respondent's voluntary
election to make testimonial use of his investigator's report.
Moreover, apart from this waiver, we think that the concern voiced
by respondent fails to recognize the limited and conditional nature
of the court's order.
[
Footnote 16]
Respondent additionally argues that certain statements by the
prosecution and the District Court's exclusion of purported expert
testimony justify reversal of the verdict, and that the Court of
Appeals' decision should be affirmed on those grounds. The Court of
Appeals rejected respondent's challenge to the exclusion of the
testimony of the proffered expert, 501 F.2d at 150 151. Respondent
did not present this issue or the question involving the challenged
prosecutorial statements to this Court in a cross-petition for
certiorari. Without questioning our jurisdiction to consider these
alternative grounds for affirmance of the decision below,
cf.
Langnes v. Green, 282 U. S. 531,
282 U. S. 538
(1931);
Dandridge v. Williams, 397 U.
S. 471,
397 U. S. 475
476, n. 6 (1970);
see generally Stern, When to
Cross-Appeal or Cross-Petition -- Certainty or Confusion?, 87
Harv.L.Rev. 763 (1974), we do not consider these contentions worthy
of consideration. Each involves an issue that is committed to the
trial court's discretion. In the absence of a strong suggestion of
an abuse of that discretion or an indication that the issues are of
sufficient general importance to justify the grant of certiorari,
we decline to entertain them.
MR. JUSTICE WHITE, with whom MR. JUSTICE REHNQUIST joins,
concurring.
I concur in the judgment and in Parts II, III, and V of the
opinion of the Court. I write only because of misgivings about the
meaning of
422 U. S. The
Court appears to have held in Part IV of its opinion only that
whatever protection the defense investigator's notes of his
interviews with witnesses might otherwise have had, that protection
would have been lost when the investigator testified about those
interviews. With this I agree also. It seems to me more sensible,
however, to decide what protection these notes had in the first
place before reaching the "waiver" issue. Accordingly, and because
I do not believe that the work product
Page 422 U. S. 243
doctrine of
Hickman v. Taylor, 329 U.
S. 495 (1947), can be extended wholesale from its
historic role as a limitation on the nonevidentiary material which
may be the subject of pretrial discovery to an unprecedented role
as a limitation on the trial judge's power to compel production of
evidentiary matter at trial, I add the following.
I
Up until now, the work product doctrine of
Hickman v.
Taylor, supra, has been viewed almost exclusively as a
limitation on the ability of a party to obtain pretrial discovery.
It has not been viewed as a "limitation on the trial court's broad
discretion as to evidentiary questions at trial."
Ante at
422 U. S. 236.
The problem discussed in
Hickman v. Taylor arose precisely
because, in addition to accelerating the time when a party could
obtain evidentiary matter from his adversary, [
Footnote 2/1] the new Federal Rules of Civil
Procedure greatly expanded the nature of the material subject to
pretrial disclosure. [
Footnote
2/2]
Page 422 U. S. 244
Under the Rules, a party was, for the first time, entitled to
know in advance his opponent's evidence, and was entitled to obtain
from his opponent nonprivileged "information as to the existence or
whereabouts of facts" relevant to a case even though the
"information" was not itself evidentiary.
Hickman v. Taylor,
supra, at
329 U. S. 501.
Utilizing these Rules, the plaintiff in
Hickman v. Taylor
sought discovery of statements obtained by defense counsel from
witnesses to the events relevant to the lawsuit, not for
evidentiary use, but only "to help
prepare himself to
examine witnesses and to make sure that he ha[d] overlooked
nothing." 329 U.S. at
329 U. S. 513
(emphasis added). In concluding that these statements should not be
produced, the Court treated the matter entirely as one involving
the plaintiff's entitlement to pretrial discovery under the new
Federal Rules, [
Footnote 2/3] and
carefully limited its opinion accordingly. The relevant Rule in the
Court's view, Rule 26, on its face required production of the
witness statements unless they were privileged. Nonetheless, the
Court expressly stated that the request for witness statements was
to be denied "not because the subject matter is privileged"
(although noting that a work product "privilege" applies in
England, 329 U.S. at
329 U. S. 510
n. 9) as that concept was used in the Rules, but because the
request "falls outside the arena of
discovery."
Id. at
329 U. S. 510
(emphasis added). The Court stated that it is essential that a
lawyer work with a certain degree of privacy, and concluded that
the effect of giving one lawyer's work (particularly his strategy,
legal theories, and mental impressions) to another would have a
"demoralizing" effect on the legal profession. The Court then noted
that witness
Page 422 U. S. 245
statements might be admissible in evidence under some
circumstances, and might be usable to impeach or corroborate a
witness. However, it concluded that, in the case before it, the
plaintiff wanted the statements for preparation only, and had shown
no reason why he could not obtain everything he sought by doing his
own work, rather than utilizing that of his adversary.
The conclusion that the work product of a lawyer is not
"privileged" made it much more difficult for the Court to support
its result. Nothing expressed in the Rule supported its result, and
the Court was forced to explain its decision by stating:
"When Rule 26 and the other discovery rules were adopted, this
Court and the members of the bar in general certainly did not
believe or contemplate that all the files and mental processes of
lawyers were
thereby opened to the free scrutiny of their
adversaries."
Id. at
329 U. S. 514.
(Emphasis added.) I am left with the firm conviction that the Court
avoided the easier route to its decision for a reason. To have held
an attorney's work product to be "privileged" would have been to
limit its use at trial as evidence in those cases in which the work
product qualified as evidence,
see Report of Proposed
Amendments to Rules of Civil Procedure for the District Courts of
the United States, 5 F.R.D. 433, 460 (1946), and, as Mr. Justice
Jackson stated in his concurring opinion, a party is entitled to
anything which is "evidence in his case." 329 U.S. at
329 U. S. 515.
[
Footnote 2/4]
Page 422 U. S. 246
Since
Hickman v. Taylor, supra, Congress, the cases,
and the commentators have uniformly continued to view the "work
product" doctrine solely as a limitation on pretrial discovery, and
not as a qualified evidentiary privilege. In 1970, Congress became
involved with the problem for the first time in the civil area. It
did so solely by accepting a proposed amendment to Fed.Rule
Civ.Proc. 26, which incorporated much of what the Court held in
Hickman v. Taylor, supra, with respect to pretrial
discovery.
See Advisory Committee's explanatory statement,
28 U.S.C.App. p. 7778. In the criminal area, Congress has enacted
18 U.S.C. § 3500 and accepted Fed.Rule Crim.Proc. 16 (c). The
former prevents pretrial discovery of witness statements from the
Government; the latter prevents pretrial discovery of witness
statements from the defense. Neither limits the power of the trial
court to order production as evidence of prior statements of
witnesses who have testified at trial. [
Footnote 2/5]
With the exception of materials of the type discussed in
422 U. S.
infra, research has uncovered no application of the work
product rule in the lower courts since
Hickman to prevent
production of evidence -- impeaching or
Page 422 U. S. 247
otherwise -- at trial, [
Footnote
2/6] and there are several examples of cases rejecting such an
approach. [
Footnote 2/7]
Similarly, the commentators have all treated the attorney work
product rule solely as a limitation on pretrial discovery,
e.g., 4 J. Moore, Federal Practice 26.626.64 (2d ed.1974);
8 C. Wright & A. Miller, Federal Practice and Procedure § 2026
(1970); 2A W. Barron & A. Holtzoff, Federal Practice and
Procedure § 652 (Wright ed.1961), and some have expressly stated
that it does not apply to evidentiary matter. F. James, Civil
Procedure 211 n. 13 (1965); 4 J. Moore, Federal Practice �
16.23[8.-4] (1963).
The reasons for largely confining the work product rule to its
role as a limitation on pretrial discovery are compelling. First of
all, the injury to the factfinding
Page 422 U. S. 248
process is far greater where a rule keeps evidence from the
factfinder than when it simply keeps advance disclosure of evidence
from a party or keeps from him leads to evidence developed by his
adversary and which he is just as well able to find by himself. In
the main, where a party seeks to discover a statement made to an
opposing party in order to prepare for trial, he can obtain the
"substantial equivalent . . . by other means," Fed.Rule Civ.Proc.
26(b)(3),
i.e., by interviewing the witness himself. A
prior inconsistent statement in the possession of his adversary,
however, when sought for evidentiary purposes --
i.e., to
impeach the witness after he testifies -- is for that purpose
unique. By the same token, the danger perceived in
Hickman
that each party to a case will decline to prepare in the hopes of
eventually using his adversary's preparation is absent when
disclosure will take place only at trial. Indeed, it is very
difficult to articulate a reason why statements on the same subject
matter as a witness' testimony should not be turned over to an
adversary after the witness has testified. The statement will
either be consistent with the witness' testimony, in which case it
will be useless and disclosure will be harmless, or it will be
inconsistent, and of unquestioned value to the jury. Any claim that
disclosure of such a statement would lead the trial into collateral
and confusing issues was rejected by this Court in
Jencks v.
United States, 353 U. S. 657
(1957), and by Congress in the legislation which followed.
The strong negative implication in
Hickman v. Taylor,
supra, that the work product rule does not apply to
evidentiary requests at trial became a holding in
Jencks v.
United States, supra. There, a defendant in a criminal case
sought production by the Government at trial of prior statements
made by its witnesses on the same subject matter as their
testimony. The Government
Page 422 U. S. 249
argued,
inter alia, that production would violate the
"
legitimate interest that each party -- including the
Government -- has in safeguarding the privacy of its files.'" 353
U.S. at 353 U. S. 670.
The Court held against the Government. The Court said that to deny
disclosure of prior statements which might be used to impeach the
witnesses was to "deny the accused evidence relevant and
material to his defense," id. at 353 U. S. 667
(emphasis added). Also rejected as unrealistic was any rule which
would require the defendant to demonstrate the impeachment value of
the prior statements before disclosure, [Footnote 2/8] and the Court held that entitlement
to disclosure for use in cross-examination is "established when the
reports are shown to relate to the testimony of the witness."
Id. at 353 U. S. 669.
Thus, not only did the Court reject the notion that there was a
"work product" limitation on the trial judge's discretion to order
production of evidentiary matter at trial, but it was affirmatively
held that, prior statements of a witness on the subject of his
testimony are the kind of evidentiary matter to which an adversary
is entitled.
Indeed, even in the pretrial discovery area in which the work
product rule does apply, work product notions have been thought
insufficient to prevent discovery of
evidentiary and
impeachment material. In
Hickman v. Taylor, 329 U.S.
at
329 U. S. 511,
the Court stated:
"We do not mean to say that all written materials obtained or
prepared by an adversary's counsel with an eye toward litigation
are necessarily free from discovery in all cases. Where relevant
and nonprivileged
Page 422 U. S. 250
facts remain hidden in an attorney's file and where production
of those fact is essential to the preparation of one's case,
discovery may properly be had. Such written statements and
documents might, under certain circumstances, be
admissible in
evidence or give clues as to the existence or location of
relevant facts. Or they might be useful for purposes of
impeachment or corroboration."
(Emphasis added.) Mr. Justice Jackson, in concurring, was even
more explicit on this point.
See supra at
422 U. S. 245.
Pursuant to this language, the lower courts have ordered evidence
to be turned over pretrial even when it came into being as a result
of the adversary's efforts in preparation for trial. [
Footnote 2/9] A member of a defense team
who witnesses an out-of-court statement of someone who later
testifies at trial in a contradictory fashion becomes, at that
moment, a witness to a relevant and admissible event, and the cases
cited above would dictate disclosure of any reports he
Page 422 U. S. 251
may have written about the event. [
Footnote 2/10] Since prior statements are inadmissible
hearsay until the witness testifies, there is no occasion for
ordering reports of such statements produced as evidence
pretrial. However, some courts have ordered witness
statements produced pretrial in the likelihood that they will
become impeachment evidence. [
Footnote 2/11] Moreover, where access to witnesses or
to their information is unequal, discovery of their statements is
often granted solely to help a party
prepare for trial
regardless of any eventual evidentiary value of the out-of-court
statements.
See Proposed Amendments to the Federal Rules
of Civil Procedure Relating to Discovery, 48 F.R.D. at 501.
Accordingly, it would appear that, with one exception to be
discussed below, the work product notions of
Hickman v. Taylor,
supra, impose no restrictions on the trial judge's ordering
production of evidentiary matter at trial; that these notions apply
in only a very limited way, if at all, to a party's efforts to
obtain
evidence pretrial pursuant to available discovery
devices; and that these notions supply only a qualified discovery
immunity with respect to witness statements in any event. [
Footnote 2/12]
Page 422 U. S. 252
II
In one of its aspects, the rule of
Hickman v. Taylor,
supra, has application to evidentiary requests at trial. Both
the majority and the concurring opinions in
Hickman v.
Taylor were at pains to distinguish between production of
statements written by the witness and in the possession of the
lawyer and those statements which were made orally by the witness
and written down by the lawyer. Production and use of oral
statements written down by the lawyer would create a substantial
risk that the lawyer would have to testify. [
Footnote 2/13] The majority said that this would "make
the attorney much less an officer
Page 422 U. S. 253
of the court and much more an ordinary witness." 329 U.S. at
329 U. S. 513.
Mr. Justice Jackson, in concurring, stated:
"Every lawyer dislikes to take the witness stand, and will do so
only for grave reasons. This is partly because it is not his role;
he is almost invariably a poor witness. But he steps out of
professional character to do it. He regrets it; the profession
discourages it. But the practice advocated here is one which would
force him to be a witness not as to what he has seen or done, but
as to other witnesses' stories, and not because he wants to do so,
but in self-defense."
Id. at
329 U. S. 517.
The lower courts, too, have frowned on any practice under which an
attorney who tries a case also testifies as a witness, and trial
attorneys have been permitted to testify only in certain
circumstances. [
Footnote
2/14]
The remarks of the Court in
Hickman v. Taylor, supra,
while made in the context of a request for pretrial discovery, have
application to the evidentiary use of lawyers' memoranda of witness
interviews at trial. It is unnecessary, however, to decide in this
case whether the policies against putting in issue the credibility
of the lawyer who will sum up to the jury outweigh the jury's
interest in obtaining all relevant information, and whether
Jencks v. United States, supra, and 18 U.S.C.
Page 422 U. S. 254
§ 3500 are to be viewed as expressing a preference for
disclosure of all facts. [
Footnote
2/15] In this case, the creator of the memorandum was not the
trial lawyer but an investigator, [
Footnote 2/16] and he was, in any event, to be called
as a witness by the defense. Accordingly, I would reverse the
judgment below because, quite apart from waiver, the work product
rule of
Hickman v. Taylor, supra, has no application to
the request at trial for evidentiary and impeachment material made
in this case.
[
Footnote 2/1]
Under criminal discovery rules, the time factor is not as great
as might otherwise appear. Federal Rule Crim.Proc. 16 permits
discovery through the time of trial; and, under Fed.Rule Crim.Proc.
17(c), evidentiary matter may be obtained pursuant to subpoena in
advance of trial in the discretion of the trial judge.
[
Footnote 2/2]
Prior to the Federal Rules, requests for witness statements were
granted or denied on the basis of whether they were evidence and
nonprivileged. In the main, production was denied, either because
witness statements were not evidence (they are inadmissible hearsay
until and unless the witness testifies); because a party is not
entitled to advance knowledge of his adversary's case; or because
the Statements were made by the client or his agent to his
attorney, and thus covered by the attorney-client privilege. 4 J.
Moore, Federal Practice � 26.63 [3] (2d ed.1974), and cases cited
therein. The cases did not hold that witness statements were
generally privileged if they were evidentiary, and had no cause to
decide whether a work product notion should protect them from
discovery, since they were nondiscoverable anyway under applicable
discovery rules.
But see Walker v. Struthers, 273 Ill.
387, 112 N.E. 961 (1916).
[
Footnote 2/3]
Mr. Justice Jackson's concurrence is even more express on this
point. It states: "[T]he question is simply whether such a demand
is authorized by the rules relating to various aspects of
discovery.'" 329 U.S. at 329 U. S.
514.
[
Footnote 2/4]
Mr. Justice Jackson also emphasized that the witness statements
involved in
Hickman v. Taylor were neither evidence nor
privileged.
Id. at
329 U. S. 516.
Indeed, most of the material described by the Court as falling
under the work product umbrella does not qualify as evidence. A
lawyer's mental impressions are almost never evidence, and
out-of-court statements of witnesses are generally inadmissible
hearsay. Such statements become evidence only when the witness
testifies at trial, and are then usually impeachment evidence only.
This case, of course, involves a situation in which the relevant
witness was to testify and thus presents the question -- not
involved in
Hickman v. Taylor -- whether prior statements
should be disclosed under the trial judge's power over evidentiary
matters at trial.
[
Footnote 2/5]
In
422 U. S. 13 of
its opinion, the Court cites Fed.Rule Crim.Proc. 16(c), as
containing the work product rule. In
n 10, the Court correctly notes that Rule 16(c) is not
"directed to the court's control of evidentiary questions arising
at trial." It seems to me that this supplies a better ground for
the Court's decision than "waiver."
[
Footnote 2/6]
The majority does cite one case,
In re
Terkeltoub, 256 F.
Supp. 683 (SDNY 1966), in which the court referred to the work
product doctrine in preventing the Government from inquiring of a
lawyer before the grand jury whether he had participated in
suborning perjury of a prospective witness while preparing a
criminal case for trial. In any event, a grand jury investigation
is, in some respects, similar to pretrial discovery.
Compare In
re Grand Jury Proceedings (Duffy v. United States), 473 F.2d
840 (CA8 1973),
with Schwimmer v. United States, 232 F.2d
855 (CA8),
cert. denied, 352 U.S. 833 (1956). The proper
scope of inquiry is as broad, and it can be used as a way of
preparing for the later criminal trial. There is, for example, a
split of authority on whether the work product rule applies to IRS
tax investigations.
Compare United States v. McKay, 372
F.2d 174 (CA5 1967),
with United States v. Brown, 478 F.2d
1038 (CA7 1973).
[
Footnote 2/7]
Shaw v. Wuttke, 28 Wis.2d 448, 454-456, 137 N.W.2d 649,
652-653 (1965);
State ex rel. State Highway Comm'n v.
Steinkraus, 76 N.M. 617, 620-621,
417 P.2d
431, 432-433 (1966);
E. I. duPont de Nemours & Co. v.
Phillips Petroleum Co., 24 F.R.D. 416 (Del.1959);
United
States v. Matles, 154 F.
Supp. 574 (EDNY 1957);
United States v. Sun Oil Co.,
16 F.R.D. 533 (ED Pa.1954);
United States v. Gates, 35
F.R.D. 524 (Colo.1964).
[
Footnote 2/8]
The Court in
Jencks quoted the language of Mr. Chief
Justice Marshall in
United States v. Burr, 25 F. Cas. 187,
191 (Va. 1807):
"'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?'"
353 U.S. at
353 U. S. 668
n. 12.
[
Footnote 2/9]
Cummings v. Bell Telephone Co. of Pennsylvania, 47
F.R.D. 373 (ED Pa.1968);
Marks v. Gas Service
Co., 168 F.
Supp. 487 (WD MO.1958);
Maginnis v. Westinghouse Electric
Corp., 207 F.
Supp. 739 (ED La.1962);
Julius Hyman & Co. v. American
Motorists Ins. Co., 17 F.R.D. 386 (Colo.1955);
Parrett v.
Ford Motor Co., 47 F.R.D. 22 (WD Mo.1968);
Scuderi v.
Boston Ins. Co., 34 F.R.D. 463, 468 (Del.1964) (each involving
a situation in which a member of a litigation team witnessed an
event or scene in the course of preparing a case for trial and the
court ordered disclosure of his report of the event);
Bourget
v. Government Employees Ins. Co., 48 F.R.D. 29 (Conn.1969);
McCullough Tool Co. v. Pan Geo Atlas Corp., 40 F.R.D. 490
(SD Tex.1966);
O'Boyle v. Life Ins. Co. of North America,
299 F. Supp. 704 (WD MO.1969).
Cf. LaRocca v. State Farm Mutual
Automobile Ins. Co., 47 F.R.D. 278 (WD Pa.1969), and
Kennedy v. Senyo, 52 F.R.D. 34 (WD Pa.1971) (in each of
which the preparation for trial was the subject of the suit);
see also Natta v. Hogan, 392 F.2d 686, 693 (CA10 1968); F.
James, Civil Procedure 211 (1965).
[
Footnote 2/10]
The holding in
Jencks v. United States, 353 U.
S. 657 (1957), would put to rest any claim that such
prior statement would be disclosable only if the adversary
established its evidentiary value ahead of time by specific proof
that it was inconsistent.
[
Footnote 2/11]
Vetter v. Lovett, 44 F.R.D. 465 (WD Tex.1968);
McDonald v. Prowdley, 38 F.R.D. 1 (WD Mich.1965);
Tannenbaum v. Walker, 16 F.R.D. 570 (ED Pa.1954);
Fulton v. Swift, 43 F.R.D. 166 (Mont.1967);
Republic
Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 557-558 (CA2
1967) (
in camera inspection).
Cf. Goosman v. A. Duie
Pyle, Inc., 320 F.2d 45 (CA4 1963). For cases
contra,
see 4 J. Moore, Federal Practice 26.64[3] n. 14 (2d
ed.1974).
[
Footnote 2/12]
The majority states:
"Moreover, the concerns reflected in the work product doctrine
do not disappear once trial has begun. Disclosure of an attorney's
efforts at trial, as surely as disclosure during pretrial
discovery, could disrupt the orderly development and presentation
of his case. We need not, however, undertake here to delineate the
scope of the doctrine at trial, for, in this instance, it is clear
that the defense waived such right as may have existed to invoke
its protections."
Ante at
422 U. S.
239.
As noted above, the important question is not when the document
in issue is created, or even when it is to be produced. The
important question is whether the document is sought for
evidentiary or impeachment purposes, or whether it is sought for
preparation purposes only. Of course, a party should not be able to
discover his opponent's legal memoranda or statements of witnesses
not called, whether his request is at trial or before trial.
Insofar as such a request is made under the applicable discovery
rules, it is within the rule of
Hickman v. Taylor even
though made at trial. Insofar as the request seeks to invoke the
trial judge's discretion over evidentiary matters at trial, the
rule of
Hickman v. Taylor is unnecessary, since no one
could ever suggest that legal memoranda or hearsay statements are
evidence. If this is all the majority means by the above-quoted
language, I agree.
[
Footnote 2/13]
If the witness does not acknowledge making an inconsistent
statement to the lawyer -- even though the lawyer recorded it --
the cross-examiner may not offer the document in evidence without
at least calling the lawyer as a witness to authenticate the
document and otherwise testify to the prior statement.
[
Footnote 2/14]
United States v. Porter, 139 U.S.App.D.C.19, 429 F.2d
203 (1970);
United States v. Fiorillo, 376 F.2d 180 (CA2
1967);
Gajewski v. United States, 321 F.2d 261 (CA8 1963),
cert. den., 375 U.S. 968 (1964);
United States v.
Newman, 476 F.2d 733 (CA3 1973);
Travelers Ins. Co. v
Dykes, 395 F.2d 747 (CA5 1968);
United States v. Alu,
246 F.2d 29 (CA2 1957);
United States v. Chiarella, 184
F.2d 903,
modified on rehearing, 187 F.2d 12 (CA2 1950),
vacated as to one petitioner, 341 U.S. 946,
cert.
denied as to other petitioner
sub nom. Stancin v. United
States, 341 U.S. 956 (1951);
United States v. Clancy,
276 F.2d 617 (CA7 1960),
rev'd on other grounds,
365 U. S. 312
(1961).
[
Footnote 2/15]
The cases have held records of witness statements made by
prosecutors to be disclosable under 18 U.S.C. § 3500,
United
States v. Hilbrich, 341 F.2d 555 (CA7),
cert. den.,
381 U.S. 941,
reh. den., 382 U.S. 874 (1965), and 384 U.S.
1028 (196);
United States v. Aviles, 315 F.2d 186 (CA2
1963);
Saunders v. United States, 114 U.S.App.D.C. 345,
316 F.2d 346 (1963);
United States v. Smaldone, 484 F.2d
311 (CA10 1973),
cert. den., 415 U.S. 915 (1974).
Cf.
Canaday v. United States, 354 F.2d 849 (CA8 1966). In
State v. Bowen, 104 Ariz. 138,
449 P.2d
603 (1969), the court reached a contrary result under state
law.
[
Footnote 2/16]
A conflict arose among lower federal courts over the question
whether the work product of members of a litigation team other than
the lawyer was protected from discovery by the rule of
Hickman
v. Taylor, supra. Ghent, Development, Since
Hickman v.
Taylor, of Attorney's "Work Product" Doctrine, 35 A.L.R.3d
438-440 (§§ 7 [a] and [b]) and 453-455 (§§ 15[a] and [b]) (1971);
Proposed Amendments to the Federal Rules of Civil Procedure
Relating to Discovery, 48 F.R.D. 487, 501-502 (1970). With respect
to discovery in civil cases under Fed.Rule Civ.Proc. 26, the
conflict was resolved in the 1970 amendments by affording
protection to documents by a party's "representative," whether a
lawyer or not. Where the purpose of the rule protecting the work
product is to remove the incentive a party might otherwise have to
rely solely on his opponent's preparation, it is sensible to treat
preparation by an attorney and an investigator alike. However, the
policy against lawyers testifying applies only to the lawyer who
tries the case.