# Jencks v. United States/Dissent Clark

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United States Supreme Court
353 U.S. 657
Jencks v. United States
Argued: Oct. 17, 1956. --- Decided: June 3, 1957
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, 1942, 316 U.S. 129, 132, 62 S.Ct. 993, 995, 86 L.Ed. 1322, 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 Goldman the Court was unanimous on the issue of disclosure of documents 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. 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 for rummaging 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 contents.'
'These files contain complaints, allegations, facts, and statements of all persons interviewed. Depending upon the purpose of the investigation, particularly 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 chaff.'
'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 investigative reports.
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 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, 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.

## Notes

* ↑ Though the Court was divided on an issue not here material, the two dissenting opinions expressed no disagreement whatsoever on the disclosure issue.
* ↑ The opinion cites only two of our cases for support. The quotations from Gordon v. United States, 1953, 344 U.S. 414, 73 S.Ct. 369, 97 L.Ed. 447, 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.' Id., 344 U.S. at pages 418-419, 73 S.Ct. at page 373. Likewise, United States v. Reynolds, 1953, 345 U.S. 1, 73 S.Ct. 528, 97 L.Ed. 727, 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, 60-61, 77 S.Ct. 623, 627-628, 1 L.Ed.2d 639.' 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, 1957, 352 U.S. 985, 77 S.Ct. 378, 1 L.Ed.2d 360, 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.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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