# Rosenberg v. United States (360 U.S. 367)/Dissent Brennan

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* Opinion of the Court
* Dissenting Opinion Brennan
United States Supreme Court
360 U.S. 367
Rosenberg v. United States
Argued: April 28, 1959. --- Decided: June 22, 1959
Mr. Justice BRENNAN, with whom The CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting.
The Government's case against petitioner rested on the testimony of Charles Meierdiercks, a confessed accomplice in the swindle that concerns us here, and Florence Vossler, the victim. Meierdiercks testified, in considerable detail, that he and the petitioner obtained Miss Vossler's check by fraud and that petitioner transported that check in interstate commerce before cashing it. Miss Vossler's testimony corroborated that of Meierdiercks to a considerable extent, but did not implicate petitioner. Since a conviction would have been impossible unless the jury believed Meierdiercks, it seems apparent that the Government put Miss Vossler on the stand in the hope that her detailed corroboration of Meierdiercks' story would lend credence in the eyes of the jury to the testimony of the confessed swindler. If the defense could have effectively impeached Miss Vossler, the Government would have had to rely on the essentially uncorroborated testimony of Meierdiercks for a conviction.
Defense counsel moved at the end of Miss Vossler's direct testimony for production of 'pertinent material in the possession of the government concerning this particular witness.' The trial judge, pursuant to this motion, ordered the delivery of some material to the defense but did not include a letter to the Assistant United States Attorney-handwritten and signed by Miss Vossler shortly before the trial-which stated in part: 'As a matter of fact, as time goes on, I am more hazy about the whole transaction and might not fare too well under a cross-examination, though I have here my statement with which to refresh my memory. It will be 3 years in January 1958 since the above swindle took place; therefore, I could not be accurate as to day to day occurrences after such a period, though, as stated, possibly a review of my statement would help.' The Court of Appeals and this Court both agree that this letter was a statement relevant to the subject matter as to which the witness testified on direct examination, and thus should have been given to the defense under the Command of the Jencks statute, 18 U.S.C. (Supp. V) § 3500, 18 U.S.C.A. § 3500. The Court holds, however, that: 'There is such a thing as harmless error and this clearly was such.' I dissent because it plainly appears that the harmless error doctrine should not be invoked in the circumstances of this case.
The principle underlying our decision in Jencks v. United States, 353 U.S. 657, 77 S.Ct. 1007, 1 L.Ed.2d 1103, was that it is impossible for a judge to be fully aware of all the possibilities for impeachment inhering in a prior statement of a government witness, 'Because only the defense is adequately equipped to determine (its) * * * effective use for purpose of discrediting the Government's witness and thereby furthering the accused's defense * * *.' 353 U.S. at pages 668-669, 77 S.Ct. at page 1013.
The Jencks statute was clearly designed to effectuate this principle. The statute, while delimiting the statements which are to be turned over to the defense, obviously comprehends that statements which are producible under it must be given to the defense regardless of a judge's opinion as to how useful they might be on cross-examination, for only the defense can fully appreciate their possible utiity for impeachment. This is the rationale of the Jencks case, and this is the rationale of the statute. As the Senate reported: 'the proposed legislation, as here presented, reaffirms the decision of the Supreme Court in its holding that a defendant on trial in a criminal prosecution is entitled to relevant and competent reports and statements in possession of the Government touching the events and activities as to which a Government witness has testified at the trial * * *.' S.Rep.No. 981, 85th Cong., 1st Sess., p. 3; and see H.R.Rep.No. 700, 85th Cong., 1st Sess., pp. 3, 4, U.S.Code Congressional and Administrative News 1957, page 1861. Although we need not go so far as those courts which have suggested that the harmless error doctrine can never apply as to statements producible under the statute, see Bergman v. United States, 6 Cir., 253 F.2d 933; United States v. Prince, 3 Cir., 264 F.2d 850, fidelity to the principle underlying Jencks and the Jencks statute requires, I think, that when the defense has been denied a statement producible under the statute, an appellate court should order a new trial unless the circumstances justify the conclusion that a finding that such a denial was harmful error would be clearly erroneous. In that determination, appellate courts should be hesitant to take it upon themselves to decide that the defense could not have effectively utilized a producible statement. This must necessarily be the case if the appellate court is to give effect to the underlying principle of Jencks, affirmed by the statute, which, I repeat, is that 'only the defense is adequately equipped to determine (its) * * * effective use for purpose of discrediting the Government's witness * * *.' Indeed, another consideration which should move the appellate court to be especially hesitant to substitute its judgment as to trial strategy for that of defense counsel is that, under the procedure established by the statute, the defense does not see the statement and has no opportunity to present arguments showing prejudice from its withholding.
In short, only a very strict standard is appropriate for applying the harmless error doctrine in these cases. Under such a standard, I cannot conclude that defense counsel could not have put Miss Vossler's letter to effective use in impeaching her. Although she stated on cross-examination that she had refreshed her memory before testifying by reference to a statement she had made previously, this oral testimony was obviously not as useful for impeachment purposes as her written admission shortly before trial that her memory of the events in question was failing. Defense counsel, if armed with the letter, might well have probed more deeply than he did in testing how her memory of the events to which she testified was refreshed. The trial strategy of defense counsel, familiar with his case and aware of the various possible lines of defense, might have been entirely different had he been in possession of the letter. At least I cannot bring myself to assume that this would not have been the case.
This is not a case in which the statement erroneously withheld from the defense merely duplicated information already in the defense's possession; it is not a case in which the witness' testimony was unimportant to the proofs necessary for conviction; and it is not a case in which the witness' statement was wholly void of possible use for impeachment. In this case, the defense was denied a letter written by a key government witness shortly before trial making statements which raised serious questions as to her memory of the events about which she testified in considerable detail at the trial. In such a circumstance, I think it was error for the Court of Appeals to second-guess defense counsel as to the possible use of the letter on cross-examination. If we are to be faithful to the standards we have set for ourselves in the administration of criminal justice in the federal courts we must order a new trial in a casesuc h as this where the possible utility to the defense of the erroneously withheld statement cannot be denied. 'The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.' Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557. (Emphasis supplied.)
I would reverse the judgment of the Court of Appeals.

## Notes

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