353 U.S. 657 (1957)
On April 28, 1950, the petitioner, as president of Amalgamated Bayard District Union, Local 890, International Union of Mine, Mill & Smelter Workers, filed an Affidavit of Non-Communist Union Officer with the National Labor Relations Board.1 He was convicted under a two-count indictment charging violations of 18 U.S.C. § 1001 by falsely swearing in that affidavit that he was not a member of the Communist Party or affiliated with it on that date.2 The Court of Appeals for the Fifth Circuit affirmed the conviction and an order denying a motion for new trial, after which the Supreme Court granted certiorari.3
The government's principal witnesses were Harvey F. Matusow and J. W. Ford, both former Communist Party members who were paid by the FBI to make oral or written reports of Party activities.4 Ford, a Party security officer and State Board member who became an FBI informant in 1948, testified in detail about five closed Party meetings the petitioner allegedly attended in 1948 and 1949.5 Matusow, who had been an FBI informant before traveling to New Mexico, testified about conversations with the petitioner at a ranch near Taos in July or August 1950.6
Both witnesses made reports to the FBI about the events and conversations to which they testified.7 Ford submitted reports sometimes weekly and sometimes more frequently immediately after meetings.8 Matusow made both oral and written reports on the ranch events.9 The petitioner moved at trial for orders directing production of Ford's reports on the five meetings and Matusow's reports on the ranch period so they could be inspected and used in cross-examination.10 The district court denied both motions without stating reasons.11
The evidence against the petitioner was entirely circumstantial and covered conduct from early 1946 through October 1950.12 This included testimony about a 1946 closed Party meeting on veterans' organizations, a 1948 Denver meeting on Taft-Hartley affidavits, the petitioner's October 1949 affidavit filing and related union newspaper article, and the absence of any Party disciplinary action against him between August 1949 and September 1950.13 Matusow later recanted his trial testimony as deliberately false, prompting a denied motion for new trial on grounds of newly discovered evidence while the appeal was pending.14
Whether a defendant must first lay a foundation showing inconsistency between a government witness's trial testimony and the witness's prior reports before obtaining production of those reports for cross-examination?15
A defendant need not lay a preliminary foundation of inconsistency between a government witness's trial testimony and prior reports to obtain production of the reports for inspection and use in cross-examination.16 The necessary foundation is established when the witness testifies that reports were made of the events and activities about which the witness testified at trial.17 The reports are relevant for impeachment purposes including omissions or differences in emphasis.18
No. The government's principal witnesses Ford and Matusow were paid FBI informants who testified about specific meetings and conversations involving the petitioner.19 Ford testified that he submitted reports to the FBI immediately after each of the five meetings he attended with the petitioner, sometimes weekly or more frequently. Matusow testified that he made both oral and written reports to the FBI on the ranch events and conversations in July or August 1950.
The petitioner moved for production of these specific reports for cross-examination, but the district court denied the motions solely because no inconsistency had been shown. Requiring a preliminary showing of inconsistency denies the defendant access to relevant impeachment material because the defendant cannot discover conflicts without first inspecting the reports.20 Even non-contradictory differences such as omissions or changed emphasis are valuable for testing credibility.21
The petitioner was not required to lay a preliminary foundation of inconsistency before obtaining production of the reports.22
Related opinions on this issue
Justice Burton concurs in the result that no showing of contradiction between the trial testimony and the reports was required.23 He agrees that under the circumstances it was unnecessary for the petitioner to show that Ford's and Matusow's trial testimony was contradicted in some respect by their contemporaneous reports.24 Justice Burton reaches the same outcome on production but would vest discretion in the trial judge to examine the reports in camera first.25
This procedure would balance the defendant's need against any government privilege before deciding what to disclose rather than ordering direct production to the defendant.26 He emphasizes that a large discretion must be allowed the trial judge in matters relating to the production of evidence.27
Whether the government must produce for the defendant's inspection reports made by its witnesses to the FBI that touch upon the events and activities about which the witnesses testified at trial?28
The government must produce for the defendant's inspection all reports in its possession made by government witnesses that touch the events and activities as to which the witnesses testified at trial.29 The defense is entitled to inspect the reports initially to determine their effective use for discrediting the witnesses.30 Production to the trial judge alone for an ex parte relevancy determination is disapproved.31
Yes. The reports of Ford and Matusow related directly to their testimony about the petitioner's alleged Communist Party activities, meetings, and conversations at the ranch. These contemporaneous reports were crucial because the evidence against the petitioner was entirely circumstantial and the witnesses' credibility was singularly important.32 The petitioner was entitled to inspect the reports to decide whether to use them in his defense because only the defense can determine their effective impeachment value.33
The value of such reports for impeachment is well known, as time can dull memory and differences in detail or emphasis can undermine trial testimony even without flat contradiction.34 The practice of producing government documents to the trial judge for his determination of relevancy and materiality without hearing the accused is disapproved.35
The government was required to produce the reports for the petitioner's inspection.36
Related opinions on this issue
Justice Clark dissents from the production rule, arguing that it fashions a new and unwarranted requirement that opens confidential FBI files to criminal defendants.37 He states that the Court has afforded the criminal a Roman holiday for rummaging through confidential information as well as vital national secrets.38 Justice Clark maintains that the prior rule requiring a foundation of inconsistency should have been retained.39
He notes that the defense itself only requested in camera review by the trial judge rather than direct production to the defendant.40 He warns that the new rule may force intelligence agencies to close up shop.41
Whether the district court's denial of the motions to produce the reports requires reversal of the conviction?42
Yes. The testimony of Ford and Matusow supplied the principal evidence bridging key time periods and was crucial to the government's circumstantial case.45 The district court denied the motions to produce the reports without stating reasons, and the court of appeals affirmed primarily on the erroneous ground that inconsistency must first be shown.46 Because the government did not assert any privilege at trial and the reports were relevant to the witnesses' testimony, the denial of production was reversible error requiring reversal of the conviction.47
The criminal action must be dismissed when the Government elects not to comply with an order to produce relevant statements or reports.48
The district court's denial of the motions to produce the reports requires reversal of the conviction.49