UNITED STATES SUPREME COURT DECISIONS ON-LINE

During the course of petitioner's criminal trial, the chief prosecution witness (Newman) indicated on cross-examination that, on certain dates, he was interviewed by Government lawyers who took notes relating to Newman's forthcoming trial testimony, and that Newman verified the accuracy of the notes. Petitioner thereupon moved for production of the notes pursuant to the Jencks Act, 18 U.S.C. § 3500, which provides that, in a federal criminal prosecution after a witness called by the Government has testified on direct examination, the court, on the defendant's motion, shall order the Government to produce any "statement" in its possession that relates to the subject matter of the witness' testimony. In relevant part, a "statement" is defined as "a written statement made by said witness and signed or other vise adopted or approved by him." 3500(e)(1). The trial judge denied petitioner's motion on the ground that the material was "the work product of counsel" and declined to inspect the material in camera. The Court of Appeals affirmed on the ground that the notes were not statements of the witness within the meaning of § 3500(e).

Held:

1. Any writing prepared by a Government lawyer relating to the subject matter of the testimony of a Government witness that has been "signed or otherwise adopted or approved" by that witness is producible under the Jencks Act, and the writing is not rendered nonproducible because a Government lawyer interviewed the witness and wrote the statement. Pp. 425 U. S. 101-108.

(a) Nothing in the language or legislative history of the Jencks Act excepts as a lawyer's "work product" a statement within the definition of a producible statement. Pp. 425 U. S. 101-102.

(b) Nor is the Act limited to statements made to an investigative agency, as distinguished from prosecutors preparing for trial. Though the Government's argument to the contrary is based on the asserted unfairness of allowing defense counsel to impeach a witness by a statement that is the product of the attorney's selections, rather than his own, the writings are producible only if they meet the terms of the statutory definition; clubjuris

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the Act itself protects witnesses from this unfairness; and it also safeguards the primary policy of the work product doctrine by protecting the privacy of an attorney's mental processes. Pp. 425 U. S. 102-106.

(c) Production of statements within § 3500(e)(1) and written by Government lawyers will not force such lawyers to testify at trial. Moreover, there is a clearly legitimate purpose for the statutory disclosure, i.e., furtherance of "the fair and just administration of criminal justice," Campbell v. United States, 365 U. S. 85, 365 U. S. 92 (Campbell I); lawyers will not become witnesses, since statements are producible only where they can fairly be said to be the witness' own; and defense counsel will have no right to call Government lawyers to authenticate their notes. Pp. 425 U. S. 106-107.

2. In the circumstances of this case, the Court of Appeals erred in making the initial determination that the writings in question were not producible statements. Campbell v. United States, 373 U. S. 487, 373 U. S. 493 (Campbell II). Pp. 425 U. S. 108-111.

(a) Newman's testimony was sufficient to call upon the trial judge to conduct an inquiry into the producibility of the material. Such an inquiry is now required to determine whether petitioner's Jencks Act motion should have been granted. Campbell I, supra, at 365 U. S. 98-99. Pp. 425 U. S. 108-110.

(b) It is not necessary for this Court to vacate petitioner's conviction and order a new trial, since petitioner's rights can be fully protected by a remand to the trial court for an inquiry into the producibility of the material, the supplementing of the record with findings, and the availability of appellate review should the trial court decide that a new trial is not required. Pp. 425 U. S. 110-111. Vacated and remanded.

BRENNAN, J., delivered the opinion of the Court, in which STEWART, WHITE, MARSHALL, BLACKMUN, REHNQUIST, and STEVENS, JJ., joined. STEVENS, J., filed a concurring opinion, in which STEWART, J., joined, post, p. 425 U. S. 112. POWELL, J., filed an opinion concurring in the judgment, in which BURGER, C.J.,joined, post, p. 425 U. S. 116. clubjuris

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