Earl Warren: You may continue, Mr. Walsh.
Maurice J. Walsh: If the Court please -- no rebuttal my time is short. There's one other point that I would like to discuss orally and that is the refusal to permit the examination by the defendant or to submit to the -- the defendant on the trial certain additional reports by the witness Durham, Agent Durham. And that arose in this fashion, Durham testified as you will recall that he had recovered this package which turned out to be narcotics from the seat of the informer's automobile or from the floor of the informer's automobile. When the physical evidence was introduced, it was enclosed in an envelope which became Exhibit 6 and appears at an inscription which appeared on that, appears in the record at page 131. That document contradicts Mr. Durham's testimony and says that the matter when it comes to the words, were obtained -- how obtained, found by Officer James L.Bryson, that's the name of man who was in the trunk of the automobile. Where obtained, 74th and St.Lawrence Avenue, Chicago, Illinois and that refers to the material. Now, this was called to Durham's attention and he was asked if that was not inconsistent with his testimony. He admitted it was and said that it must be a mistake by Agent Fields who filled out the envelope. Agent Fields on cross-examination when interrogated about this matter said that he had been given that information, the question was, “Who told you that this material enclosed in this envelope was found by Officer James Bryson at 74th and St.Lawrence?” “I think agent Durham gave me the information at that time, later the same day on August 13th.” And then he said that there was other information reported to him that he put on it. Now, the exhibit also bears, according to the testimony of both after it was filled up, the initials of Durham and that was after these inscriptions as to how it was recovered were on the envelope. The prosecutor then asked Fields in redirect whether this was the official report. The agent said no, it was a -- it was an evidence cover. I then asked if there were additional reports, written reports, by Mr. Durham concerning this transaction. And Fields said yes. I asked him if they were consistent with his testimony, he said he did not know. I asked the Government for production. The -- and asked the Court to compel it, the Court -- well, the prosecutor claimed no privilege for this -- for this report, for these additional reports covering this transaction but said that he didn't have them in court, he couldn't provide them until the next day at first. The Court said this trial will end tonight, we'll finish it today. The -- we then had some discussion of it, I urged the Gordon, the decision of this Court in the Gordon case where, what I conceive to be, a very similar situation arose and the Court thereupon denied production or inspection of the -- the additional reports of Mr. Durham covering this transaction. My thought was in -- in seeking those was to find out whether his additional written matters, whether the other extra-judicial written statements by him were consistent with his testimony.
William J. Brennan, Jr.: Where they can expose to have been contemporaneous with the events?
Maurice J. Walsh: Very close to it, the written reports of agents --
William J. Brennan, Jr.: In recording really the details as you understood it or --
Maurice J. Walsh: Recording the details of the transaction which might disclose whether he found this envelope as he testified or whether Bryson found it as Fields said Durham told him and Fields recorded. And Fields, bear in mind, is a government agent (Voice Overlap) --
William J. Brennan, Jr.: Now, the judge denied that application. Did he state a ground?
Maurice J. Walsh: Not material.
William J. Brennan, Jr.: Just not material?
Maurice J. Walsh: Well, the -- the discussion is -- is included in the record immediately following page 126. The -- I don't know that the Government -- that the judge stated his ground but he -- he sustained the Government's objections and we -- I -- I would assume that that was the situation. I -- I would like to -- to say this much to the Court that this charge of traffic in narcotics, traffic of course is deplorable but the very charge has reached the point now where it tends to import verity and therefore it is an exceedingly dangerous one. The presumptions, Justice McReynolds -- Mr. Justice McReynolds in a dissent said in the -- in the Casey case that formerly the torture and they're acquiesced, and it's to secure a conviction. Now, the presumption has been brought to the aid of the prosecutor. It has this advantage that at least the -- the accused goes to prison unmutilated and with -- not to disquieting an outcry.
William J. Brennan, Jr.: May I ask one last question, Mr. Walsh. I noticed at page 103, you make a statement speaking of John Doe, “We believe he is dead, unless we know who he is, we cannot say that.”
Maurice J. Walsh: That's right, Your Honor. Our -- at one point in the cross-examination I asked if it was a specific person, if it was a man named Tebbil Holmes. When we -- we thought it was, but we have never been able to determine it. The only thing that we -- what we know of this man is that he was brought -- brought face to face with us -- with Roviaro in the police station.
William J. Brennan, Jr.: And this fellow Holmes is dead?
Maurice J. Walsh: There is a man named Holmes who is dead but that isn't in the record because we weren't permitted to go into it in any fashion.
Tom C. Clark: It's either when he denied knowing -- knowing to the facts?
Maurice J. Walsh: We don't know.
Tom C. Clark: I mean Holmes.
Maurice J. Walsh: Well, Your Honor, we don't know. We thought so, but the Government -- when the Government wouldn't admit who he was, even when we asked if he was the informer then we -- we felt that we were powerless to go forward because the Government's four witnesses or additional witnesses might come in and say that it was an entirely different person. The Government indicates that this denial by the man who was brought face to face with -- with the defendant, and I say this in response to your question, was -- that this denial was for the -- for the purpose of hoodwinking the defendant into thinking that this person was involved in the offense and was a fellow prisoner. That's -- that's the argument that was replied by their brief on that question.
Earl Warren: Was there testimony to that effect (Voice Overlap) --
Maurice J. Walsh: There was testimony that effect -- to the effect that he was held in custody but all of the officers denied knowing whether any charges were ever placed against him and they said that they haven't in any event. But they knew that he was held in custody that night.
Earl Warren: And they haven't told him to make that statement that he didn't know the defendant or any -- any testimony of that kind?
Maurice J. Walsh: It didn't -- the record didn't get that far, they started to say this was for the purpose of and were cut off. Now, the Government in its brief here has urged that that would -- would have been what was shown, that is that this man was merely concealing his identity as an informer at the time of that confrontation in order to hoodwink the defendant for some purpose of detection.
Earl Warren: Mr. Knapp.
James W. Knapp: Mr. Chief Justice and may it please the Court. I think that first we should understand what the Court of Appeals has said with respect to Count 1 -- Count 2. They held that as to count 2, the possession count, there was no error because John Doe had nothing to do with petitioner's illegal possession of heroin and was not a participant in any sense of the word in the petitioner's procurement and transportation of the package. Proof of his identity would not have shed any light at all on the -- on the undisputed illegal act of the petitioner. It found that there were facts proved showing petitioner's possession of heroin which furnished prima facie evidence of guilt under Count 2 and left him with the burden to prove he possessed the narcotics legally. They held that in as much as the sentence imposed was a general sentence and since guilt under Count 2 would support the sentence, it was immaterial whether error intervened as to Count 1.
Felix Frankfurter: Mr. Knapp, may I ask you whether the sentence, the fine part of the sentence, it seems to -- what is that -- what do you do with that, is that a $5 to run concurrently? I know money --
James W. Knapp: It is my --
Felix Frankfurter: -- don't imply that even though it runs.
James W. Knapp: It is my understanding that the Government and the Bureau of Prisons would construe this as a concurring sentence.
Felix Frankfurter: Meaning by that --
James W. Knapp: The $5.
Felix Frankfurter: -- $5.
James W. Knapp: That is -- that is my understanding.
Felix Frankfurter: All right.
James W. Knapp: As -- as I read the sentence, it says for imprisonment for a period of two years and besides that he forfeit and pays to the United States of America a fine in the sum of $5 on each of Counts 1 and 2 of the indictment. That said sentences shall run concurrent.
Felix Frankfurter: All right. That's the way I would read it --
James W. Knapp: And --
Felix Frankfurter: -- I must say it's sort of special English, we have $5 to run concurrently.
Speaker: Could I ask you a question?
William J. Brennan, Jr.: (Voice Overlap) $10 fine then.
Felix Frankfurter: No, it means $5.
James W. Knapp: I would understand it to be a $5 fine, Your Honor.
William J. Brennan, Jr.: Only one $5 (Voice Overlap) --
James W. Knapp: A sum of $5 on each of Counts 1 and 2 but it says the sentence to run concurrent.
Felix Frankfurter: So, that there's two years for each, for the (Inaudible) although.
James W. Knapp: Yes, the --
Felix Frankfurter: The $5 also (Voice Overlap) --
Speaker: I would like to ask you a question about the Court of Appeals raising it. Supposing you look at this case just as a Count 2 case, might not the identity of this man, whom the record shows was used as the man to set up the case as it's called might not his testimony had a bearing on the possible defense of entrapment?
James W. Knapp: Your Honor, there was no suggestion of entrapment and (Voice Overlap) --
Speaker: They didn't put on a defense?
James W. Knapp: It would be a matter of defense.
Speaker: Certainly would.
James W. Knapp: Any entrapment would be a defense issue and it was not raised at any point and as I understand it that there was no point of entrapment at all in this case.
Speaker: But if they had this man's testimony they might have been presented with that defense.
James W. Knapp: But on the other hand they would be precluded, Your Honor. They could still make the point of entrapment since they could bring evidence, presumably it would be the petitioner himself.
Felix Frankfurter: He must be told that he is in fact.
James W. Knapp: That's exactly the point we --
Felix Frankfurter: (Voice Overlap) can take it out of some cross-examination.
James W. Knapp: He would -- he would be -- it'll be almost impossible to prove it without him unless there were other people present, friends of his who wanted to testify.
Earl Warren: Where a man finds himself confronted with three or four police officers testifying against him and he's -- he has the option either of pinning his testimony against all of theirs or remaining mute at the trial, might he not be a lot more likely to remain mute if he couldn't get the witness who had participated there and whom he thought might help him than if he could?
James W. Knapp: I -- I think Your Honor's question gets exactly to the hear of the Government's issue -- case here, that we do not say that if he had put in evidence and controverted the facts here in some way that he would be -- should then be still denied the identity of Doe. I think that is a far different crime because at that point, there would be an issue of fact to be determined by the Court and Doe would then of course be important to resolve that issue of fact. And as a matter of fact, that -- that's exactly what happened in the Portomene case.
Earl Warren: Yes. But here, in this case, do you -- do you contend that the -- the defendant ought to make his defense or at least initiated, blindfolded then -- and then give the Government the right to determine whether -- whether or not at some particular phase in the trial they can let him in on information that he's entitled to from the outset, do you maintain that
James W. Knapp: Well, I don't think that he would be blindfolded, Your Honor. If -- if he made the (Voice Overlap) --
Earl Warren: Well, if he didn't have his witnesses, he would blindfolded, wouldn't he?
James W. Knapp: Yes, but he doesn't know what this witness is going to testify.
Earl Warren: Well, he knows one thing that the witness said once in the presence of officers that he never saw this man in his life before.
James W. Knapp: That is true and -- and I'd like to direct Your Honor's attention to the record there. Thereafter, the Government on redirect examination inquired of the witness and this is at the record on page 53. Question “On June 22, 1954, you said you saw Albert Roviaro for the first time is that right, sir?” Answer “Yes, that is right.” Question “Who did you see him in the company of, Roviaro?” Answer “Yes, in the company of the John Doe.” Question “The John Doe you have been referring to since you took the stand this morning?” Answer “That is right.” Question “Is that correct?” Answer “That's right.” Question “In the second time you saw Albert Roviaro, who was he in the company of?” Answer “He was in the company of John Doe. He went into the residence that day.” Now --
Earl Warren: That's the man -- that's the man who was present there when -- when John Doe said that he --
James W. Knapp: Yes, sir, that is to redirect examination of Agent Durham so that --
Earl Warren: I -- I didn't know you could then ring a bell that your own witness had rung.
James W. Knapp: Well, it went to the point of explaining the -- the testimony or the statement of Doe in Roviaro's presence that he did not know him. And incidentally, the -- the answer to that question, question “Didn't Doe say he didn't even know him?” Answer “Yes -- yes, sir, at first he did”, which implies that later on or at some other point he didn't stick to that story. So, I think it is a fair inference that -- that Doe was seeking to cover up from Roviaro the fact he -- that he had been the informant in the case and -- and the -- and was seeking to -- to maintain his position as an informant because he --
Earl Warren: Who could best -- who could best enlighten the Court or the jury on that subject?
James W. Knapp: Well, I would think here that -- had the Government proceeded, they might have elicited that information from the agents themselves, but they did not go any further, Your Honor. Now, the -- the Government's position is simply this, that this rule is the rule of long standing that the courts will not compel or allow the discovery of the names of informants or the channels of -- of communication of information flowing to the Government, either by the officer to whom it is given or the informant himself or by any other person without the Government's consent. This rule is founded on public policy to encourage citizens in their duty to communicate to the Government information which they may have as to the commission of a crime without fear of consequence. And it -- it is a necessary rule of policy.
William J. Brennan, Jr.: Well, do you consider, Mr. Knapp, that John Doe was merely an informer in the sense that I as the observer may see a crime committed and report that back to the police?
James W. Knapp: Obviously, Your Honor, he was -- he was more than that type of an informant.
William J. Brennan, Jr.: Well, that type of informant (Voice Overlap) --
James W. Knapp: He -- he --
William J. Brennan, Jr.: -- merely an informer at all, no matter how you define this one.
James W. Knapp: I would characterize him as an undercover agent.
William J. Brennan, Jr.: Well, that's not an informer, is it?
James W. Knapp: And he is characterized by one of the Government witnesses as a special employee. But it still doesn't mean that he is not an informant --
William J. Brennan, Jr.: Well, I don't (Voice Overlap) --
James W. Knapp: -- because he --
William J. Brennan, Jr.: I don't quite understand why the Government suggests that the rules governing the right of -- to keep secret the names of informers in the sense I define informer would apply to an individual like this.
James W. Knapp: Because in -- in the detection of (Inaudible) such as this, crimes involving narcotics, it is -- it is highly essential that the Government develop informants who will --
William J. Brennan, Jr.: (Voice Overlap) but that's what --
James W. Knapp: -- who actually --
William J. Brennan, Jr.: That's my point though, are they really merely informers? He -- he was more than that, whether you say he was an actual participant in a crime or not, he certainly took a very -- played a very large role in all of the events, didn't he?
James W. Knapp: Well, they -- these informants are used for the purpose of detecting crime, to make buys for the narcotic service in -- in which case the -- the agents conduct a surveillance such as was conducted here so that they might themselves be able to testify to the events which transpired without disclosing the identity of the person who was acting (Voice Overlap) --
William J. Brennan, Jr.: But he doesn't -- he doesn't merely inform, he actually plays such a role as that the other witnesses are able then to testify to things which the plea by the fact finder mean that the accused is guilty.
James W. Knapp: That is correct.
William J. Brennan, Jr.: But does that -- he's just not informing on the fact that a crime has been committed or that may -- a crime perhaps will be committed --
James W. Knapp: Well --
William J. Brennan, Jr.: -- he's actually setting up, he is part of the circumstances which establish that a crime has been.
James W. Knapp: I -- I think that is a fair statement, Your Honor, but I still say that -- that he is in a sense an informant, a secret channel of communication through which the --
William J. Brennan, Jr.: Well, I gather you have to take that position in light of the reliance on the English and other cases that informers -- the names of informers may be kept as this one was from the defense upon request.
James W. Knapp: Yes, sir,I -- I think it's -- it's quite important in the administration and enforcement of the criminal laws that that informants' identities not be disclosed, not only for the protection of the informant but -- but for the protection of the Government itself.
William J. Brennan, Jr.: Well, I could agree with you as to the kind of informer who merely reports to Uncle Sam or the state government that something is happening.
James W. Knapp: Well, I think --
William J. Brennan, Jr.: But as to an individual who plays this much of a role, I have more questions.
James W. Knapp: Your -- Your Honor, the -- the informer -- I think the informant can go a bit further, as -- as for instance one who is in -- in a ring or something and -- and was reporting back what -- what is transpiring among the conspirators and I believe that is the -- was the case of the witness in the -- in the old English case of the trial of Thomas Hardy, he had been just such a person and (Voice Overlap) --
William J. Brennan, Jr.: Yes, but there --
James W. Knapp: -- disclosed.
William J. Brennan, Jr.: But those individuals, independent of the presence of the so-called informer, would go right on committing the illegal activities. Here, you have the crime itself established by reason of the participation of this individual with the accused.
James W. Knapp: Well, the -- the accused here at least made the sale to the --
William J. Brennan, Jr.: Well, of course, but to whom did he make it? To John Doe, didn't he?
James W. Knapp: Yes.
William J. Brennan, Jr.: The so-called informer.
James W. Knapp: Yes.
William J. Brennan, Jr.: That's a little different from the ring situations that you discuss.
James W. Knapp: Now --
Earl Warren: Mr. Knapp, what -- what case do you rely on as being most nearly on its facts like this case so far as this informer rule that you speak of is concerned?
James W. Knapp: Well, I --
Earl Warren: You said there are a whole line of them, just give me the one which you rely on most, that's closest to this so we can say well, this lies in the same field as this and -- and the informant participated to some extent and -- and so forth, it must have that in mind.
James W. Knapp: I would think, Your Honor, that the Scher case --
Earl Warren: What case?
James W. Knapp: Scher, Scher versus U.S., 305 U.S.251 (Voice Overlap) --
Earl Warren: 305, 291?
James W. Knapp: 251, Your Honor, would perhaps be as close, although I haven't found any case that's exactly squarely in point with this.
Earl Warren: What were the facts in that case?
James W. Knapp: As I understand it there, there's prosecution in two counts for violation of Section 201, Title 2, Liquor Taxing Act.
Earl Warren: The what?
James W. Knapp: Of the Liquor Taxing Act, by possessing and transporting distilled spirits in containers wanting the required revenue stamps. The officers acting upon information received from an informant observed the actions of the petitioner and arrested him and found non-tax paid liquor in his car. The petitioner's counsel moved to suppress the evidence. And it's held that in these circumstances the source of information which caused him to be observed was unimportant to the petitioner's defense, the legality of the officer's action does not depend upon the credibility of something told but upon what they saw and heard, what took place in their presence. Justification was not sought because of honest belief based upon credible information but they pointed out moreover as often pointed out public policy forbids disclosure of an informant's identity unless essential to -- to the defense as for example where this turns upon an officer's good faith.
Earl Warren: Do you feel on its facts this -- that's even close to this case?
James W. Knapp: Well, as I say, Your Honor, those cases are the closest cases that we can get factually to them and they are cases arising -- and there are others which arise from search and seizure, and the search is based upon information received from an informant. Now, obviously, the informant's identity is not disclosed. Now, obviously, if the -- there was -- was in fact no such information received, well then it would be probably an improper search. But they do not let them controvert it.
Felix Frankfurter: Mr. Knapp, I'm much interested in the problem raised by -- I'm much interested, the problem raised by this case in your reference to the old Hardy case on a regular opinion, 109 Massachusetts. Now, this rule -- this rule about informants, that isn't -- is that -- I know its functions under policy and the Government -- the opportunity of -- of having commission of crimes revealed to the Government et cetera, et cetera shouldn't be dried up, but isn't -- isn't the ruling Section 5, I wonder what it's all about, has to do with the relevance. If a defendant wants to find out who it was who snitched on him, what's that got to do with the issues in the case? He may then find out the fellow who told the Government is a (Inaudible) and not to be trusted, that has nothing to do that doesn't bear on within the framework of relevance in the chronic in the (Inaudible) crime had nothing to do with whether he did or didn't deal for money from a postal savings bank et cetera, et cetera or as here. But when the issue -- when -- when some evidence through a person has come to the Government which does bear on and is relevant as to the defense that a man might make against a charge, then certainly the federal cases, those three cases that they rely on and differentiate, they -- of course you can't be shut off including your remedy, isn't that right?
James W. Knapp: That is exactly --
Felix Frankfurter: Do I have the way to deal with this problem not from any hard and fast rule --
James W. Knapp: The --
Felix Frankfurter: -- within nice calculations whether a fellow is an informer or isn't an informer because that isn't an exclusive statement in this world and there might be an undercover man, not an informant in the sense that he runs around or gives tips, but that he does that and also works to watch crime, the commission of them by -- by being undercover. I think we get a little -- I think we get more lively to discuss this --
James W. Knapp: Your --
Felix Frankfurter: The point of view of the relevant to what was thought to be elicited here to the issues of the case as the defenses he has a right to make.
James W. Knapp: Your Honor --
Earl Warren: I think shed us a light to get a little more into this field before he gets to -- gets to that. I would like to ask you this, Mr. Knapp. Suppose this man was a police officer, John Doe and none of us know here but what he was a police officer. Suppose he was a police officer, one of four or five that participated in this affair and the Government took the position, "Well, we just don't want to tell you which police officer it is, we don't want to divulge who that is." Would they have a right to do it?
James W. Knapp: Well, I would think there that -- that he would not be an informant in -- in that sense if he is a police officer, an enforcement officer. And the -- the witnesses have characterized him as an informant and as a special employee which is the same thing as I (Voice Overlap) --
Earl Warren: Yes. Well, let's say then that he wasn't a regular police officer but that he was a regular employee of the Government who was around making buys in the narcotic world, would you say then that they have a right to keep all those people undercover?
James W. Knapp: Well, I -- I would say that that would be a difference between that type of -- of an employee and an enforcement officer, Your Honor.
Earl Warren: What is the legal distinction between them? They're both agents of -- of the Government, aren't they?
James W. Knapp: Well, I wouldn't characterize the special employee as an agent of the Government.
Earl Warren: What is the difference in their function if they both do this -- this particular thing that we're talking about? What would be the difference whether John Doe was a paid informer or was an agent assigned to undercover work of that character and he did exactly what John Doe did in his case, what is the difference in law so far as the relationship of that person to a trial is concerned?
James W. Knapp: Perhaps in that circumstance there might not be very little distinction.
Earl Warren: And I -- and I thought so. But now is John Doe -- was John Doe a paid informer?
James W. Knapp: As far as I know, the record discloses him -- I think Agent Fields (Voice Overlap) --
Earl Warren: I beg your pardon?
James W. Knapp: I think Agent Fields, the Government witness and a Federal Narcotic Agent characterized him as a special employee.
Earl Warren: Well, then he would be in that position we've just been talking about?
James W. Knapp: He very likely could -- could be very much in that position.
Earl Warren: Then if there is --
James W. Knapp: I don't know whether -- actually whether he get paid or not, Your Honor.
Earl Warren: Yes. Well, then if there was no -- there is no distinction in your mind between him and the police officers doing that same duty, why then couldn't the -- the Government anytime it wanted just -- just refuse to disclose one of its officers who participated in -- in a case against the defendant and -- and who -- who was a part of the scheme that they're trying the man on.
James W. Knapp: I think that -- that there may well be a situation where the Government might insinuate an agent into a conspiracy or a ring, who was a government agent hired, has tenure and emolument, position and duties in which case they might -- might say that he was in the category of an informer.
Felix Frankfurter: Mr. Knapp, I don't quite understand unless -- I speak polite. I appreciate why you -- of a question what now you're answering, but I don't see how you can answer these questions in abstractly as you do.
James W. Knapp: Well --
Felix Frankfurter: The fact that he is an informer doesn't preclude all securing of evidence and the fact he isn't doesn't require that it be given. I don't understand how you can discuss this question of evidence in abstractly?
Earl Warren: They weren't abstractions -- they weren't abstractions, they were specific questions about specific things and -- and specific situations that we ask about very often from this bench.
James W. Knapp: I would like to -- to get to the very point that the Government --
Felix Frankfurter: Let me ask you this, on this point. In -- I mean a fellow comes in to the U.S.Attorney's Office and makes a complaint and then the assistance at the complaint desk decides whether or not this case should be presented to the grand jury, tell him -- telling you'll find it Interviewer he defendants. I'd like to know who the assistant U.S.Attorney was and thought there was a case, could he? Well, he's an informer or whatever he is, he couldn't, I could suppose because it isn't relevant to the defense, if it is then I don't care whether you label him an informer or don't. But if we go around making distinction as to who is and who isn't an informer, we'll keep out stuff that ought to be let in and to let in stuff that ought to be kept out --
James W. Knapp: The --
Felix Frankfurter: -- the statutes. I'm -- I'm just wondering if that isn't the problem in this case?
James W. Knapp: The -- the problem I think rests on the factual situation --
Felix Frankfurter: Then why do you (Voice Overlap) --
James W. Knapp: -- of this particular case.
Felix Frankfurter: -- an informer or not?
James W. Knapp: The --
Earl Warren: He is asked -- he has been asked about it.
Felix Frankfurter: Well, I know (Voice Overlap) --
James W. Knapp: That's the reason -- [Laughs]
Felix Frankfurter: Well, that's-- that's in the case. I'm not talking about the question --
James W. Knapp: What we --
Felix Frankfurter: (Voice Overlap) of answering a question even from the bench.
James W. Knapp: What we do not contend that -- that in every instance that this -- that the person's identity must be kept secret but what we say --
Felix Frankfurter: Well, you said (Voice Overlap) --
James W. Knapp: -- that where --
Felix Frankfurter: -- question if he's an informer.
James W. Knapp: That -- that where the --
Felix Frankfurter: Is that right?
James W. Knapp: Not necessarily. There are --
Felix Frankfurter: (Voice Overlap) --
James W. Knapp: There are instances in which we -- we agree that informers name would be necessarily have to be disclosed where it is the interest of justice require it. And but we say in the facts of this case there is nothing to show that this man would produce anything other than cumulative evidence. Just the same as if there are several people who observed a robbery of a bank, after you call two or three, you don't need to call them all.
Earl Warren: No, but who -- who in the circumstances of this case would be available other than -- other than John Doe to give evidence on the subject as to whether he had ever seen this defendant before or not?
James W. Knapp: Well, the only person would be of course, I presume, the petitioner himself would state whether --
Earl Warren: Yes.
James W. Knapp: -- he knew him or did not know this John Doe.
Earl Warren: Yes, he and John Doe.
James W. Knapp: That's right.
Earl Warren: And wouldn't -- wouldn't the petitioner be entitled to -- to have that kind of evidence in court to support him even if he did chose -- choose to take the stand himself?
James W. Knapp: I say that if he introduced any evidence at all tending to controvert the Government's evidence which he has left it all undenied, he has not denied any -- any issue of fact in here. But if there was evident at any point raised, an issue of fact raised then I'll say the Government would have been bound to have disclosed John Doe because he then would be a person who might shed some light on this controversy. The agent says this, the petitioner says that, there is an issue of fact and at that point he has perhaps -- certainly becomes a witness who -- who can shed some light on it. And in that point, we -- we say that obviously he must be disclosed but in the posture that we have hereof no denial, no evidence, uncontorverted evidence, as you might as well say admitted evidence of -- of the Government, there is nothing in here to show in the testimony of these witnesses other than the -- than the testimony that John Doe had been -- had at the police station denied knowing the petitioner.
Earl Warren: Now, isn't that contradictory evidence at least?
James W. Knapp: Well, I -- I think that the Court -- that this is a matter for the Court to decide whether or not he -- he will require this disclosure in -- in deciding --
Earl Warren: No.
James W. Knapp: -- if he has to think well, whether -- whether in fact there was any real denial or whether it was only a pretense in -- in there. I think that's a matter for the trial court to decide.
William J. Brennan, Jr.: Well, he did but the trial court denied the applications to have John Doe identified long before it was gone whether or not the defendant was going to take the stand.
James W. Knapp: Well, you mean -- you're speaking of the bill of particulars, Your Honor.
William J. Brennan, Jr.: Well, the bill of particulars and as I read the record, later in the record when questions were asked by the -- Mr. Walsh, by a witness who said he knew who John Doe was, objections of the Government were sustained.
James W. Knapp: Well --
William J. Brennan, Jr.: That's at the 103, isn't it?
James W. Knapp: The first record that I -- references I have --
William J. Brennan, Jr.: No, but at the 103, was -- I think the question was asked, “Officer, do you know John Doe by any other name?” “Yes, sir.” “What is that name?” Mr. Emanuelson, he was the United States attorney, wasn't it?
James W. Knapp: Yes.
Felix Frankfurter: "I'm going to object to that question." The Court objection sustained then there's a long colloquy for two pages which ends up again with the Court sustaining the Government's objection.
James W. Knapp: The -- the point -- the point --
William J. Brennan, Jr.: Well, what -- what I'm getting to, Mr. Knapp, does the question whether the Government fairly withheld the identity of John Doe turn in this case and whether or not the defendant took the stand or should have taken the stand?
James W. Knapp: I -- I don't think of course that we can characterize the defendant's failure to take the stand any other way than the law (Voice Overlap) --
William J. Brennan, Jr.: Well, I would suppose that but I -- I understood you just argued that we had to look at this case and its fact setting and that an important fact was that the defendant did not take the stand.
James W. Knapp: I said that -- I believe, Your Honor, that -- that he did not adduce any evidence or any facts pretending to controvert it. Of course there are many instances where as a practical matter he is the only one who can do it.
William J. Brennan, Jr.: Well, then let me phrase it. Does it -- does the question here turn on whether or not he did or did not adduce any evidence in support of his defense either by taking the stand or otherwise?
James W. Knapp: I -- I think it does --
William J. Brennan, Jr.: How?
James W. Knapp: -- because there is no showing here that John Doe would produce anything other than cumulative evidence.
William J. Brennan, Jr.: Well, how could he know if he didn't know who John Doe was?
James W. Knapp: Well, certainly, he himself knew. He himself knew whether he knew (Voice Overlap) --
William J. Brennan, Jr.: Well, I gather as the burden of Mr. Walsh's --
James W. Knapp: -- he knew whether he's with him that night.
William J. Brennan, Jr.: I gather as the burden Mr. Walsh's argument that he doesn't know, he knows that somebody according to the evidence of the other government witnesses at the police station identified to the defendant as John Doe denied that he never seen John Doe or seen the defendant before. That's as much as he knows but who that was as to -- that's the burden of Mr. Walsh's argument.
James W. Knapp: Your -- Your Honor --
William J. Brennan, Jr.: He can't tell.
James W. Knapp: -- Mr. Walsh has assured us that he does not know however I think the trial court might well have considered whether in truth and in fact that petitioner knew who Doe was or -- or his identity. In fact, Mr. Walsh at page 41 of the record says, "Your Honor, this is the point actually. He has testified that John Doe was present at 11th and State Street with the defendant. We know that person -- we know that person, that person is dead as I understand it." So, certainly there is some -- something in the record to show that he had certainly some idea as to who this man was and when you consider the facts of the case, I think it -- that the judge might well have -- have thought that -- that Doe knew who -- that the petitioner knew who Doe was.
Earl Warren: Would the thought on that part be sufficient to -- to justify the judge in denying a witness to the --
James W. Knapp: Well, I -- I
Earl Warren: -- defendant.
James W. Knapp: I think that -- that it goes -- it goes toward the question. Certainly, if -- if he knew who he was, how is he prejudiced?
Earl Warren: Is there proof in -- in the record here, is there any proof that you can point to, to the effect that he did?
James W. Knapp: Your Honor, I can only point to the factual circumstances as testified to the agents from which I think a reasonable person might conclude that the petitioner knew who Doe was. For example, when got into the car and this is the testimony of agent -- of Officer Bryson on page 90, when this party got into the automobile, he said to John Doe hi. So, John Doe said hello. He says, “I have to wait a long time for you.” So, he said, “Yes, I know." He said, “I tried to get you at the place and I tried to call you at home also.” He said, “I wanted to let you know I'd be an hour late. I wanted you to come at 11:00 rather than 10:00.” Certainly, he knew where to call him at the place. He knew where to call him at home. Later on, down at the bottom of the page, he said, “What about the other money you owe me?” So, John Doe said, “Well, I'm doing the best I can.” He said, “Things are so hot now it's taking me a long time to put it all down.” “Well,” he said, “do what you can anyway.” He said, “I brought you three pieces this time.” And then when he left, after he had taken the package containing the narcotics from the tree and placed it in the car, “Okay, here it is. I'll call you in a couple of days.” Now, I think that from that testimony there's certainly is the inference to -- and when you consider that together with the evidence of the officer that they had been seen together on two occasions before, one going into the other's house, I think there's at least a strong inference that he had some idea who Doe was.
William J. Brennan, Jr.: Well, now --
James W. Knapp: I mean I --
William J. Brennan, Jr.: According to Mr. Walsh they thought it was this chap Holmes, Holmes is dead now and was of course at the time of the trial. If that's the fact that he was dead and he couldn't appear, why was the Government so anxious not to disclose who he was?
James W. Knapp: Well, the only answer that I can -- can say to that -- to that question is that if they have disclosed the identity of this person, it might have affected other cases. And as a matter of fact, that's the -- the answer that -- the reason that the Government set forth for not wanting to disclose Doe. The -- in resisting the disclosure and this is at the record at page 40, the Government advanced the reason that the informants work in more cases than one, that there are other matters pending. And he went on and said that after an informant's name has been revealed, he is worth nothing. And another time, the Government said the reason is because he is acting as a government employee in other cases and it would help other persons in matters that are pending.
Felix Frankfurter: Well, that -- that --
James W. Knapp: Now --
Felix Frankfurter: That excuse for withholding his name or producing it isn't any good if the disclosure is appropriate for helpful thought of the defendant, would it?
James W. Knapp: That is exactly -- that the fact show that -- that this --
Felix Frankfurter: (Voice Overlap) --
James W. Knapp: -- man Doe was --
Felix Frankfurter: -- you would as a general principle because the Government always has the alternative of deciding that they will keep the informer intact rather than convict John Smith, isn't that right?
James W. Knapp: Well, that's perhaps an initial determination --
Felix Frankfurter: Yes (Voice Overlap) --
James W. Knapp: -- that they -- they have to be --
Felix Frankfurter: So that --
James W. Knapp: -- except in making some inferences.
Felix Frankfurter: -- all these considerations merely means if the evidence isn't important or relevant to, if it isn't fair to enable a man to make a proper defense to disclose the informer's name, there's a considerations policy that you shouldn't gratuitously waste that asset if the Government conceded, isn't that what the point?
James W. Knapp: That -- that is exactly it.
Felix Frankfurter: So, you have to get down to the particular case, don't you?
James W. Knapp: That is exactly it and we think on the facts of this case, there is no -- nothing to show that Doe was anything other than a cumulative witness.
Harold Burton: Now, it's plain, isn't it, if you're proceeding under Count 1 and trying to show a sale that you would have to disclose it?
James W. Knapp: We do not concede that point, Your Honor.
Harold Burton: And that wouldn't be participating?
James W. Knapp: Well, we -- we don't concede on that theory that it would be necessary to -- to disclosing. I admit that it might be a harder position to assume and maintain but we don't necessarily concede that --
Harold Burton: (Voice Overlap)
James W. Knapp: -- it -- it was in error, that the court didn't -- below did not decide there that issue.
Harold Burton: So, if he's not a participant in the sale he -- because he's less a participant here?
James W. Knapp: Well, I say that he is certainly not a participant in the possession because he never had possession of it at least until it was put in his car. The possession was taken by -- by the petitioner Roviaro, he picked it up by the tree and he took it over and he put it in the car. Now, it may be a transfer of possession but there's no joint possession.
Harold Burton: It's pretty close it then?
James W. Knapp: Well, it's close but it's not quite there. I mean it's actually -- it's a transfer, it's not a joint possession. He -- he was riding around in his car with it, together.
William J. Brennan, Jr.: Mr. Knapp, getting back to some basic fundamentals. I suppose the injunction or the kind of domestics, to the prosecutor's job is to do justice and not merely to secure convictions, ought to have some bearing, should apply in a case where the Government's own witnesses say that John Doe in their presence denied he'd ever seen the defendant.
James W. Knapp: Well, but we've -- I think that the explanation of that is perfectly logical. The reason though -- and it was proved to be false.
William J. Brennan, Jr.: It is logical but --
James W. Knapp: That was proved to be false.
William J. Brennan, Jr.: -- what troubles me is how, under those circumstances, the Government can justify not supplying the defendant with a name which perhaps might have enabled the defendant to -- to establish a defense which for all I know might be complete.
James W. Knapp: Well, I think there again that -- that if -- if there had been any real question of mistaken identity here, if the defense had proved, for example, by an alibi witnesses, not by the defendant himself would -- would -- Roviaro was off somewhere else. And Doe again his name might have been -- been important and -- and perhaps at that point should have been produced but until there is any evidence along that line or any showing or any -- any joining of issue, there was -- there was no reason for it.
William J. Brennan, Jr.: You don't recognize that the fact that the Government's own witnesses were willing to say on the stand as they did that that was the case, presented a situation where you -- the Government should have revealed it.
James W. Knapp: No, I -- I don't think so. I don't think there's any question of bad faith here on part of (Voice Overlap) --
William J. Brennan, Jr.: I'm not suggesting that.
James W. Knapp: -- we don't -- we don't -- as a matter of fact, I don't -- I don't feel that this is a suppression, a case of any suppression at all. Although, the Government has disclosed that John Doe was there and they relied on rule of law through defense or having to disclose his identity. Now --
Earl Warren: Well, Mr. Knapp, how about on the question of conflict, how about -- how about on the question of this report that Mr. Walsh was talking about at page 131 where Officer Durham said that this was -- this was found by James L -- Officer James L.Bryson in the Court -- I mean in the car and then on another occasion Mr. Durham testified that he himself had found it. Now, do you not think that the one man who is driving that car and -- and to whom supposedly this was delivered, Mr. John Doe might -- might be helpful to the defendant in -- in determining which of those officers was the one who actually found it in his car along side of him.
James W. Knapp: Well, of course that witness could testify again. But again, we have the testimony of Durham who says I picked it up at the floor of the car. I think he said on the middle strip.
Earl Warren: Yes, but his written statement was to the contrary.
James W. Knapp: And -- not Durham, Your Honor.
Earl Warren: Well, he put his initials on that -- on that report, didn't he?
James W. Knapp: He put his initials on that report and I'm not certain whether he merely initialed the weighing of it or not, Your Honor. I think somewhere in the record I ran into that, but (Voice Overlap) --
Earl Warren: You don't think that's (Voice Overlap) of a conflict anyway that --
James W. Knapp: -- but in any event, he knew about. He -- he knew about.
Earl Warren: -- the defense might be entitled to -- to the only witness who would know whether it was Bryson or Durham?
James W. Knapp: Well, in -- in any event, I don't believe that it's too important who picked it up, Your Honor, whether -- whether Bryson --
Earl Warren: (Voice Overlap) --
James W. Knapp: -- who picked it up, whether Durham picked it up.
Earl Warren: You don't -- you don't because you're on the other side, but may be the defense would and -- and really you're not -- you're not entitled to determine for the defense whether it's important to him or not, that's -- that's his right with all the process that the Court leaves open to him and the opportunity to get witnesses to substantiate his position. And for you to say well, that conflict does amount to anything to me and the other -- the other one about John Doe not knowing him was unimportant because it's cumulative, I don't think the Government has the right to decide those things in determining whether it will divulge the name of a participant in a thing of this kind.
James W. Knapp: In the Court of Appeals, Your Honor, said to our minds it was wholly immaterial to have found the package. The sworn testimony of Bryson and Durham is not at variance and indeed it isn't, while Bryson did not testify that he saw Durham pick up the package. He was in the trunk of the car and Durham picks up the package and knocked on the back for Bryson to get out, so Bryson didn't see it but he saw -- immediately afterwards he saw Durham in possession of the -- of the package.
Earl Warren: But in this -- if Officer Durham testified that he -- he got it out of the car and Officer Bryson testified that he got it out and the record showed -- written record signed by or initialed by Officer Durham showed that Bryson got it out. Certainly, you've got a conflict that the only man -- other man who was there and knew what happened should be on the job, that if he's wanted, isn't that correct?
James W. Knapp: Well, Your Honor, I think I can explain that best with -- with reference to the testimony as to what happened to this package. It was testified by Durham that he found the package. Bryson said that he saw him with the package immediately when he got out of the trunk. Sims who --
Earl Warren: Saw who?
James W. Knapp: Durham with (Inaudible). Sims who was up at the corner of 24th and St.Lawrence and came down said that he -- the first person he saw with the package was -- was Durham. I think all police officers agree that the package was field tested to determine the nature of its contents by Durham at 69th and some place out in Chicago, Cottage Avenue and then the package -- Durham says that he gave the package to Bryson at that point. And -- and at that point, I believe there is a conflict in testimony as whether he gave it to Bryson, Bryson doesn't say that he did. At least there is some evidence in the record that Durham gave it to Bryson. The package was then taken to police headquarters, at which point it was turned over to Fields. Now, Fields was down on the street with Bryson, he had no personal knowledge of who had recovered the package. It could have been either Bryson or Durham. And Fields prepared later on, I think they went home, it was late at night and they went home and they came back and the next day Fields prepared Exhibit 6. Now, Mr. Walsh read the record here and he said I think I got the information from Durham. But the record also discloses that -- that when they came back at police headquarters there was some dealing with this package and in fact all of the officers present initialed the glassine envelope containing the -- the heroin and so that at that point Fields might well have been confused as to who -- who did recover the -- the package. But the point does remain of course that -- that Durham saw Exhibit 6 and put his initials on it. Now, your -- I would like to go to point two, Your Honor, mainly --
Earl Warren: Surely.
James W. Knapp: -- mainly because the petitioner has -- has argued so vociferously about it. I -- I think that when you consider the evidence here, there is no question of -- of applying a presumption to say that we're using a presumption to presume knowledge of the contents, although I think the presumption could go that far. Actually, when you consider here is -- here is the petitioner, he gets out of his car and then another man slides over and drives it off and he -- the petitioner gets in along side of Doe in the passenger's compartment, they drive by a circuitous route and somewhere along the route they slowed down and then they come to a complete stop and they turn off their lights, then a minute or two later they start on again and they come to the tree and the petitioner gets out and he walks over to the tree, here it is 11:30 at night, tree was well lighted. Now, here -- but he walks over to the tree and picks up this package and he puts it in the car and says here it is I'll see you tomorrow. He walks down the street and carry at the (Inaudible) and then further down St.Lawrence and gets back in his car four blocks from where he left it. Obviously, a prearranged meeting with whoever drove his car away. Obviously, he knew where to stop at the tree to get out. There was the conduct of going down around the circuitous route was surreptitious. I think from those facts you might well find that he knew what was in that package regardless of any presumption. Certainly, we (Voice Overlap) --
Earl Warren: Mr. Walsh, I don't -- I don't quarrel with you about whether it's reasonable to suppose this or suppose that. The only -- the only thing that is in my mind is this, that if there is one of the participants in this sale and possession of narcotics that has been put in there by the Government and the government officers, all except that participant, have testified.
James W. Knapp: Is it -- is it fair and is it right for the Government to prevent the defendant from having the opportunity to talk to and subpoena the only other man who might be able to help him in his defense?
James W. Knapp: (Voice Overlap)
Earl Warren: Now, that's the only -- that's the question that bothers me, not whether your officers are truthful or not, I'm -- I don't --
James W. Knapp: In that -- in that --
Earl Warren: -- I don't question them.
James W. Knapp: I'm not questioning them here at all.
James W. Knapp: That -- well, that gets it back again to the policy and the reasons why the Government didn't want to disclose the identity of this person. He was -- he was useful in -- in enforcing the narcotic law --
Earl Warren: Yes.
James W. Knapp: -- and to -- and to -- to disclosing at this point, I think the Government has pointed out would -- would affect future cases and I want to be --
William J. Brennan, Jr.: But the only thing is, Mr. -- the thing that bothers me is that there would never have been a case for the prosecution of this petitioner, except at least it would not have been this case for the prosecution of this petitioner except for John Doe's partner.
James W. Knapp: I can't --
William J. Brennan, Jr.: Isn't that right?
James W. Knapp: -- derive that, Your Honor. I certainly (Voice Overlap) --
William J. Brennan, Jr.: Well, isn't that -- doesn't that put it in a category very different from any of the situations in which perhaps very legitimate, the Government may insist that it should not be required to divulge the -- the identities of people who helped.
James W. Knapp: I say it only puts it in a different category where there's an issue raised. (Voice Overlap) --
William J. Brennan, Jr.: Apart whether there's an issue -- apart whether there's an issue or not, I don't understand why the Government can keep to itself information of that kind when the individual concerned is the only reason there was any opportunity to prosecute petitioner at all.
James W. Knapp: Well, they have -- they have witnesses besides that person who (Voice Overlap) --
William J. Brennan, Jr.: They may have witnesses but this -- this transaction, this event, this incident would never have occurred except for John Doe's partner.
James W. Knapp: Very likely.
William J. Brennan, Jr.: Not very likely, absolutely, isn't it.
James W. Knapp: Well, but still I -- I don't see that -- that it's -- this material --
William J. Brennan, Jr.: Suppose that it's (Voice Overlap) Mr. Knapp.
James W. Knapp: -- to defer that -- that the -- that it's prejudicial to the defendant. He hasn't shown that this witness would -- would aide him in anyway, he doesn't contend that (Voice Overlap) --
William J. Brennan, Jr.: All he has to point -- all he has to point to I suggest is that your witnesses said that John Doe said at the police station he'd never seen the petitioner in his life.
James W. Knapp: Well, of course there, the witnesses also testified to their own knowledge that that was false.
Felix Frankfurter: Mr. Knapp --
James W. Knapp: Excuse me, Your Honor. [Laughs]
Felix Frankfurter: -- Well, I -- I get into trouble maybe to -- first time you told it doesn't matter whether it's an issue or not and then evidence was given that makes it an issue. Believe me you don't put an -- a witness on a stand if -- if his testimony is not in issue, is that the whole theory of Anglo-American trial. But what's an issue of -- of credibility raised is the issue of witnesses. One who is important says yes and the other who says no then he's entitled to bring the witness who says no. I mean I feel that -- oversimplify this thing, I don't see -- I think I do but I see you're saying the crucial question is whether this is relevant to the issues in the case. And if it is, the fact that he's an informer is immaterial but that's -- it's cumulative which may be a consideration not having a fourth witness if you have three, but if it isn't rejected on that ground which is a matter of discretion for the trial court and if he's the only other fellow to a relevant issue, then he must be produced, informer or no informer. Now, on which (Inaudible) to stand that it is not an issue, all -- that although an issue and it -- it is not irrelevant, it's cumulative and therefore the trial court has discretion --
James W. Knapp: I think that it's --
Felix Frankfurter: -- or that if it an issue it must be produced.
James W. Knapp: I think it's --
Felix Frankfurter: Now, plenty of those seems to last --
James W. Knapp: I think it's -- I think it's a matter for the trial court to determine --
Felix Frankfurter: Well, now --
James W. Knapp: -- whether on the (Voice Overlap) --
Felix Frankfurter: (Voice Overlap) --
James W. Knapp: -- it's certainly disclosed.
Felix Frankfurter: -- can't cut off a source of evidence which is for practical purposes is essential to a defendant, can he? That's not a matter of discretion.
James W. Knapp: But, Your Honor, when -- when he is -- he is faced with --
Felix Frankfurter: I'm not taking any position with this. I'm (Voice Overlap) --
James W. Knapp: Well, he is --
Felix Frankfurter: -- what -- how I should determine what the issue is.
James W. Knapp: When the trial court is -- is faced with this one rule of policy and the other, the rule of justice, he has to make a determination based upon the facts which are before him. And I think he might well have decided that this was only a strategy employed by Doe and the Government to -- to keep the -- the petitioner from becoming aware of the identity of a person who had been useful to the Government. I think that further that he might well have considered and weighed the facts of all the testimony and thought that in any event there is no prejudice here because the -- there is this very strong probability that he knows who Doe was.
Felix Frankfurter: The one thing --
James W. Knapp: In weighing it all, he would feel that there was no prejudice to the defendant particularly where there's no evidence has been brought other than this -- this one instance controverting the Government's testimony as to the guilt of the defendant.
Felix Frankfurter: The one thing I'm sure about, the only thing I'm sure about is that the trial court cannot say that it is more important to protect a source of information for the Government than to do justice to the defendant, he can't make that decision.
James W. Knapp: Well, I -- I think -- of course Your Honor is -- is correct that -- that where -- but where he feels that -- that it would be necessary in the interest of justice that he would have to order the Government to produce him (Voice Overlap) --
Felix Frankfurter: (Voice Overlap) to the defense.
James W. Knapp: But he --
Felix Frankfurter: He cant say on the whole in balancing these two things, it's more important that -- that an informer or more important that somebody who contributes in running down crime shall be put -- that his identity should be protected and in the particular case a little bit of hardship could be done to the defendant. He can't do that, can he?
James W. Knapp: I -- I think that the --
Felix Frankfurter: Can he? Can you answer that question? Can the judge say, "Well, this will be a little bit hard on the defendant and make his -- and make it more difficult for him to establish his innocence, to rebut the case again. We'll make it more difficult to have a jury or a judge within no jury finding -- not finding not -- not guilty because I am throwing this protection of source of that information to an overwriting interest of society." He can't do that, can he?
James W. Knapp: No, but I think he can -- he can say that on the facts here I find that there is -- is no probability that this man is going to -- to testify in anyway favorable. That -- that effects don't show to me that he -- he possesses (Voice Overlap) --
Felix Frankfurter: He can't do that arbitrarily -- he can't do that arbitrarily, can he?
James W. Knapp: No, but he --
Felix Frankfurter: The record --
James W. Knapp: -- he certainly have --
Felix Frankfurter: -- contradicts that that's the situation then he can't cover it up by saying it's a discretion and your job is, if I may say so, your job is to convince this Court that whatever -- whatever advantage might have accrued whether in trial strategy or what as the defendant is so minimum, its so unimportant, its such a -- what you say a trial tactic but as against that the projection of a secret source of information is important. That's your job as I recall.
James W. Knapp: I -- I frankly -- personally feel that this is a legal jiujitsu on Mr. Walsh's part. He's -- he's using the Government to try to throw the Government. And it's perfectly all right, but I still haven't seen how he has made out any real substantial issue that though it produced would -- would be of any assistance to the Court in the determination of the factual issue. There -- there was no -- they had -- they never controverted the facts in any other way. Certainly, if those testimony was to be expected to be helpful to them, they would have done that and they didn't do it. I say they can't stand still and say here we're entitled to his name without any further showing and that -- that's the point. They have, I say, though we -- we have some slight disagreement on the incident at the police station, but I still feel that -- that they have not made out any real issue here which would show that those testimony would be of any assistance to them in their defense.
Earl Warren: Well, Mr. Knapp, on the question of cumulative evidence, can -- can the Government produce all the witnesses that it wants, all the witnesses it has except one who might not be favorable to them for one reason or another and then decline to produce that one or to give his name so that the defense can use him on the grounds that his testimony would only be cumulative of what they have already put into the record?
James W. Knapp: Your Honor, if -- if the witness would be unfavorable to them and favorable to the other side, I don't see how it could honorably withhold him. (Voice Overlap) --
Earl Warren: But who is ever going to know that -- who is ever going to know that if the defense doesn't have an opportunity to see the witness and talk to him or at least have the opportunity to -- to know who he is and subpoena him? Is the Government going to decide that question in camera?
James W. Knapp: In this case, the -- the defendant himself was in the position of knowing. I -- I believe (Voice Overlap) --
Earl Warren: That is according -- according to the -- according to the prosecution testimony but he's not bound by that. He's entitled to have any witness that will contradict that and it might be that John Doe would contradict that.
James W. Knapp: Well, Your Honor of course we can -- we could stay here and imagine a great many things that Joe Doe might say. We don't know on the state of the record what he would say. We can imagine but my point is it is not a matter of imagination, you can always imagine that he would say something that would be directly favorable to the petitioner or -- or contrary to the Government but there has been no showing that he would or that there's any likelihood that he would. And that's --
Earl Warren: The only thing here --
James W. Knapp: -- the point that I say that until he does do that and show that there is some necessity for him that the -- that the identity should not be disclosed in instances whether the -- the man is necessary for the Government in future -- enforcement of future (Voice Overlap) --
Earl Warren: So, the only -- the only thing he has said in the case has been something that -- that if repeated on the witness stand would greatly help the defendant. He said I never saw him in my life before.
James W. Knapp: Well, if -- if that had been true that is certainly something we have to -- that the (Voice Overlap) --
Earl Warren: If it had been approved, but he did say it -- he did say it, didn't he? It's in the record.
James W. Knapp: He did say that.
Earl Warren: Yes.
James W. Knapp: At the least it says, he said it at first. At first he did --
Earl Warren: All right.
James W. Knapp: -- was the answer I mean (Voice Overlap) --
Earl Warren: At first, all right.
James W. Knapp: -- that he -- he contended it --
Earl Warren: Yes.
James W. Knapp: -- and if -- if there were any real question of identity, of course, we realize that the defendant is not required to take the stand. Well, he has a right to do it and -- and a person who is innocent, I -- of course Your Honors explained many reasons why he might not desire to controvert, but I should think that he would and if he had, I say the man should have been produced at that point.
Earl Warren: Mr. Walsh, I've -- we've taken so much of your time, principally me. If you want a few minutes to sum up your argument in order to -- to make any additional point, we didn't give you an opportunity to make, you may --
James W. Knapp: Well, the --
Earl Warren: -- you may take it.
James W. Knapp: -- the only other point briefly as to -- to point three, I think our brief adequately covers the point that there was no showing there that the -- that the report of Agent Durham would in anyway be controversial of -- of Durham's own testimony, they only showed that he made a report, they didn't show what was in it. And in the Gordon and Krulewitch case, there was a showing on the part of the witnesses. They have made prior contradictory statements. Now, as to point two, I think I have started to -- in the main point that I have there is that -- that the facts as shown are consistent with a knowledge of the content of the package and that you don't have to rely upon the presumption to presume the contents, however, I do think that the Yee Ham case goes almost so far as to -- to hold that that presumption would create a presumption that he knew that there was heroin in the package and that it would be therefore incumbent upon him to explain it and that would not be an unreasonable presumption in view of the fact that heroin is not legally possible to be manufactured or produced in this country and you cannot import opium for the purpose of producing heroin. And as I understand that no legal heroin in the United States or if there is, it's a very incontestable quantity.
Felix Frankfurter: Mr. Knapp, there's one point that I would like to have you state the Government's position, you may have and (Inaudible) namely, the ground that the Court of Appeals took that it heard with all these question of informer and so on because of the sentence, the stay in Count 2 and then under Count 2, the problem doesn't arise.
James W. Knapp: They -- they say that as to Count 2 --
Felix Frankfurter: What is -- what is your position on that?
James W. Knapp: I say that he is not a participant in the possession. If you leave out Count 1 in the circumstances surrounding the evidence as to Count 1, you have clearly evidence of eye witnesses to the actual possession and transportation of the -- of the heroin by the petitioner. The -- the John Doe was in no sense a participant in that. He was sitting in the car and as that I would say is no more than any other observer, a person who for instance was standing across the street and saw it or someone in a house looking out a window and might have seen it, that -- that John Doe was not a participant in that actual possession and transportation of the heroin from the tree to the car. And the Court of Appeals held that and I think that that is certainly as to Count 2, that -- that he certainly was not a participant -- not a participant in the offense. I don't think he had possession to it, put in his car. Thank you, Your Honor.
Earl Warren: Thank you, Mr. Knapp.