The Significance of the Jencks Act in Military Law

• Author: Major Luther C. West
• Pages: 03

1. INTRODUCTIOS

According ta its legislatire history, the so-called Jeneks Act' was paased by Congress to correct a "grave emergency" in federal criminal law enforcement resulting from the Supreme Court's decision ~n Jeneks i.

Cnited States.* The legislative history of the

Act reveals that almost immediately follomng the decision "entire investigative files were ordered disclosed" by misinformed federal judges. "Startling decisions" were noted where district court judges ordered pretriol disclosure of statements in the hands of the government. The "boldness of attempts by defense lawyers to secure t of nl! PPI'SOIIS interviemed by federal agents

in the crirn tigation of a crime. and to secure srand jztw winutvs I\- ed with due consternation by our legislators in rheir report on the bii1.8

The resulting Jencks Statute, set forth verbatim in the footnote,' !$--as designed to correct the foregoing predicament in federal criminal law enforcement. The Act, briefly, was intended to protect government files from needless disclosure, to prevent de-fense fishing expeditions, and otherwise to lend stability to the somewhat shaky federal discovery procedures that fallawed in the wake of the Jencks decision.E The purpose of the Act has been defined as follows:

Vnder 13 L8.C A. section 3500 the defendant is entitled, ''Atte? a witnoes railed by the L'nihd Stotra lzes tmtifisd on direct rzananolion,

* The o~mlone and eonelusions Dreaented herein are those of the author and do >no; neeessanl) represent th'e viers of The Judge Advocate General's School or any other governmental agency.

** JAGC. U.S. Army: Office af the Staff Judge Advocate, 24th Infantry Diiision: LL.B.. 1950. George Washington University: Member of the Bars of the State of Marviand and of the United Stales Court of Military

' 18 U.S.C f 3500 (1963).' 353 U.S. 617 (1917)'See 1967 U S.C. COXD. & AD. NEWS 1861. See also appendices A and B, Palermo 7 . United States, 360 U S

343, 356, rehearing dented, 361 U.S.

' 18 U.S.C.

4 3600. "Demands for produetian of statements and reports O f wltnessen.

"(a) In any cnmmsi proaacution brought by the United States, no statement or report ~n the possession of the United States whieh wag made by

A00 63648

856 11959).

. . . "to any written statement" , . ilgned or otherrrlse adopted or approied by him" [or other "statement" wthm the definltm of the Act '1 u.h.ch I?in the po~sersm of the gol-ernment and u,hich relater to the jlbject matter aa to which the rvltnesr has testified. The purpose 19

a Garermmr wmes8 or prospeetire Gawnment witness (other than the defenaanrl to an agent of the Gaiernmenr shall be the subpet of eubpaena, diicaveii. or r s p e ~ t m mti! raid w t m 6 6 has tentified OR d?rect examinatmi in the trial of the case.

"(bl After L w:fm99 cslied br the United States has testified on direct

examinatin,., the court ehall. on motion a i the defendmt. order the United States to pioduee ani stafeniert (8s helemafter defined) of the xltnenn I" the possession of the Un.red States which relater to the rubieet matter 8s To whch the airneri has terrified If the entne eante"ts of any Q U C ~ state- rcla!c fc +? rubled marter of the testmany of the wfnerr. the court

s i l l o?da it L1 be de iiered direct15 to t i e defendart for his examination

adopted or approied by him. or

"(2) a stenographic. mechanical, electrical, or other recording, or a

trarrcr~prron thereof, uhich 18 B substantially rerbatim rec.fal of an oral statement made by sa.d \wtnenn to an agent of the Government and recorded eontemporaneovsly with the making of such ora! statement ''

Tjniled States, 350 U.S 313, rrhm,mg derired. 351 US.-55 (1969) ' Saunders v United States 315 F2d 346 (DC Or. 1953);krlted sr&s j. U-enzel, dl1 F 2d 154 i4th Or. 1952); Foster T United States, 308 F.2d 761 i3th Clr 1962).

I

A "statement" within the p u ~ i i e r

of the Act has been defined subatantlslly BQ defined ~n the Act Itself See, e..., Johnion *. United States, 269 F.2d 72. 74 (10th Clr 1959).

See Palermo 5

JENCKS ACT

impeachmen: only The Act IS one of innitation It eircuinrcriber \what may be abf;.ned . . and It, rather than the o p m m of the Supreme Court 111 J e n c ' ~ measures the right to obwn statements or reports in the poreesrian of the United States and the procedure to be used inobtamng them. [Espham an f k or.g~r.aI 1

Khiie the Jeneka Act iias made a distinct mimnt on federal criminal lair, its erfect nn militair lax has been less than pronounced. Federal decisans applying the Jencks Act ale quite numerous.s Military case l a w on the otiiei hand. while quite early recognizing and aceegting the application of botb. ihe Jrneks decision and Act, reflects only seven cases \rhere either the decision

foregoing notwithstanding. it IS the piiipose of this article to inquire into an area of the opeianon of ths Jencks l e t that may wl\ h a n a significant bearing on milltar>- case Im.,

11. Losr OR DESTROYED ETIDESCE

As pre\-iousi:- noted in tile footnore. the Jencks Act, in subsection (d), provides essentially that if the United States "elects" not to produce the prior statement of a gol'ernment Twtneas after the %itmas has testified. and after the court iias ordered the statement

the Jeniki Act1 ; United States Y, 39 (1558) (Jmchs decision app!ieable

tor test not praducib!e under the Jeneka Act. agert's ieport eantalnlng ''Corn-mente, ideaa, opmiana and e~nelus~~nd''of the agent not producible under the I c f ) , NChl 58.00089, Parka, 27 C M R 328 (19E8) (OS1 leports producible under the Jenekr hct)

"See ~ILXUAL.

FOR COLRTI-~~ARTIAL,

UNTD STATES,

1911, para. 33%(2)

*GO 5861B 85

produced, "the court ahal! strike from the record the testimony of the witness. , , ." Under L~SURImilitary practice it would be almos inconceivable for the government to refuse to produce a ]>retrial stntement of a gorernment witness nhen ordered to do so br the law officer, ;f the statement is 111 the possession of the gorernmem and reasonably accessible. The risk of a military refusal here 1s

slight. and the consequer.ces obvious and swift. >hIitar? interest in this phase of the operation of the Jencks Act LS understandably low A slight danger to military prosecution does exist :n this situation. but ii is in a parallel situation where the government is iinobfc to produce the former statement ( z , ~ where the farmer statement. CID case notes. or sound recording are inaccessible, or hare been lost or destroyed before trial). that rhe goasibility of military error under the Jencks Act becomes of significant notice. While Article 32 investigations and formal CID reports are almost never last or destroyed before tiid (or retna!), CID case nates and sound recordings that are no+ made B part of the formal report are much more difficult to track down. ate haphazardlr filed. and ale sometimes misplaced or destrored before trial UY

rehearing.ll It is in regard to this situation (J.c.. the pretrial destruction of Jencks Act evidence and its effect an rnilirary law) that the t h w t of this aiticle n.ill be directed.

1. THE COMBS DECISIOS

   Wule the question a i lodt or destr

   trial requested B verbatim copy of the reporters' notes taken at the Article 32 inrestlgatmn. Although this request was made to the reporters and to the staff judge advocate, the notes \\-ere thereafter destrored by the reporters "in accoidance with usual

   JENCKS ACT

   and standard operating procedures." The defense counsel moved at trial to strike the testimony of several government xitnesses because of the failure of the government to produce the notes. This motion. based on the Jencks Act, was denied. and the issue vas preserved for appeal. On review the Air Force Board af Review noted that after the staff judge advocate received due notice that the defense wanted a. verbatim copy of the Article 32 notes, he "made no attempt to safeguard the stenographic notes." The Board none the less held that the destruction of the notes "occurred as the result of negligence, rather than through an act of 'CO~SC~OUS'

   destruction," as had been alleged by the defense. The Boird further held that "the accused's nght under the Jencka Statute to examine ww statement within the purview of the lau., is absolute." (Emphasis added.) The Board accordingly held that the testimony of the pertinent xvitnesses should have been atricken from the record, and "that dismissal of the charges. instead of...