Summaries of an oral statement which evidence substantial selection of material, or which were prepared after the interview without the aid of complete notes, and hence rest on the memory of the agent, are not to be produced. Neither, of course, are statements which contain the agent's interpretations or impressions. Final decision as to production must rest, as it does so very often in procedural and evidentiary matters, within the good sense and experience of the district judge and subject to the appropriately limited review of appellate courts.
The petitioner was charged with tax evasion when he failed to report income from dividends; he claimed that his accountant had made an error in preparing the return. Internal Revenue agents interviewed the accountant and prepared a memorandum briefly summarized his statements. When the accountant testified as a government witness, petitioner's counsel sought discovery of the memorandum for impeachment purposes. The trial judge withheld the memorandum on the ground that the Jencks Act ( 18 USC 3500), governing the production of statements to government agents by government witnesses, precluded production of the requested memorandum since it was not within the definition of the term "statement" in subsection (e) of the act. The defendant was convicted and his conviction was affirmed by the Court of Appeals for the Second Circuit. (258 F2d 397.)
Was the trial judge correct in his decision to withhold the memorandum sought by the petitioner’s counsel for impeachment purposes?
The Court held that the trial court and the appellate court were justified in determining that the memorandum was not within the definition of the term "statement" as contained in the act. The Court asserted that the Jencks Act, 18 U.S.C.S. § 3500, did not authorize discovery of a memorandum containing a summary of a conference with a government witness. Because the memorandum was not a substantially verbatim recording of the conversation with the witness, it was not discoverable material.