Campbell v. United States (373 U.S. 487)/Dissent Clark

Mr. Justice CLARK, with whom Mr. Justice HARLAN and Mr. Justice STEWART join, dissenting.

In this case an FBI Agent, John F. Toomey, Jr., conducted a 30-minute interview of Dominic Staula, a witness to the bank robbery involved. The Special Agent asked Staula some questions and while they were being answered jotted down notes. Upon completion of the interview the Special Agent orally recited to Staula the substance of the interview, refreshing his memory from his notes as he did so. He then asked Staula if the recitation was correct and received an affirmative reply. This was at noon. About nine o'clock that night the Special Agent transcribed the report on a dictating machine for subsequent typing, using the notes, as well as his memory, for the dictation. After the report was typed by a secretary, working entirely from the transcription, he checked its accuracy and then destroyed the notes.

The Court holds the 'oral recitation' to be 'a written statement made by said witness (Staula) and * *  * adopted *  *  * by him,' within the purview of 18 U.S.C. § 3500(e)(1). It reaches this result via a construction reminiscent of the Rube Goldberg cartoons, basing its holding upon the following conclusions: (1) the Special Agent may be fairly deemed to have read his notes back to Staula, since 'it is not seriously suggested that there was a material variance or inconsistency'; (2) Staula approved and thereby adopted this 'reading' of the notes; and (3) the Special Agent reduced the notes to narrative in his interview report which, as the trial court found, was 'almost in ipsissima verba the narrative' the Special Agent had recited to Staula. The Court thus transmutes the interview report into a written statement made by Staula and adopted by him and strikes down the conviction because the interview report was not produced at the trial upon the request of the defense.

This conclusion, however, will not bear analysis. Even though Staula's approval of the oral recitaiton as correct be deemed arguendo an adoption by him, the oral recitation, nevertheless, was not a written statement within the meaning of the Jencks Act, 18 U.S.C. § 3500. The interview report of the Special Agent was written by the agent, not Staula, and was never approved by Staula in its written form. The statute applies to 'a written statement made by said witness.' At the very least the 'written statement' referred to by the Act is one which is, if not written by the witness, adopted by him in its final written form. The notes to which the agent referred in preparing his report do not rise to the dignity of a statement. They were, as the trial court found, 'jottings' of the Special Agent in aid of his memory for purposes of later dictating his formal report. These notes were not in narrative form, they were not read to Staula by the Special Agent, nor did Staula read them himself or initial or sign them. The Special Agent merely recounted to Staula a narrative of the events which the latter had described. It is true that in so doing he referred to his notes from time to time, but the evidence is clear that the notes were not included verbatim in this recitation. Every lawyer-indeed every layman experienced in the taking of interviews-knows full well that it is extremely unlikely that any two narratives, even though prepared from identical notes, will be alike. Likewise the common experience of all of us belies the conclusion that the interview report was 'almost in ipsissima verba the narrative' recited by the Special Agent to Staula. But even if it were, the statute does not cover a written report such as we have here, prepared from the agent's memory, as well as his notes, some nine hours subsequent to the interview and neither read by or to the witness nor shown to him prior to what the Court terms his 'adoption' of it.

The Court reads the trial court's findings as holding that the Special Agent, in presenting the information for Staula's comments after the interview, adhered to the precise words of the notes, so far as practical. But the testimony is to the contrary and is unequivocal. It then holds that this finding is not clearly erroneous. But the simple answer to this is that the finding has no support in the record. In addition, there are three vital flaws in the adoption of this inference-and that is all that it is-that the oral narrative to Staula was identical to that related nine hours later in the interview report. The trial judge stated what was said to be Toomey's testimony that 'anyone who heard Staula and had Toomey's jottings would have dictated the same words.' (Emphasis supplied.) 199 F.Supp. 905, 907. But this overlooks (1) the limitation Toomey put on the word 'anyone,' i.e., anyone who had 'the same knowledge of the case'; (2) that Toomey did not say that the interview report was in 'the same words' as the narrative to Staula but twice repeated in his testimony that the language of the interview report was 'substantially the same thing' he had related to Staula; and (3) the notes made by Toomey had not been 'just checked with Staula,' ibid., for it had been nine hours since Toomey had even seen him. Hence the findings of the Court of Appeals were entirely correct and those of the trial judge clearly erroneous. This is made as clear as crystal in the concurring opinion of Judge Aldrich. As he said, it would be the defense to use statements to impeach checking back with a witness at noontime of a consolidation of jottings and memory, and the dictation of a report in the evening, would result in the identity inferred by the court.' 303 F.2d 747, 751. Even the expertise of an experienced Special Agent of the FBI does not rescue such a conclusion from beyond credulity.

As we said in Palermo v. United States, 360 U.S. 343, 350, 79 S.Ct. 1217, 1223, 3 L.Ed.2d 1287 (1959), the Congress felt that it would 'be grossly unfair to allow the defense to use statements t impeach a witness which could not fairly be said to be the witness' own rather than the product of the investigator's selections, interpretations, and interpolations.' This in exactly what the Court is doing today. Extension of the statute to include such reports can only result in mischief, permitting a skillful defense lawyer to repudiate and destroy a witness and obstruct the administration of justice. I therefore dissent.