nobles argued april decided june respondent federal criminal trial resulted conviction defense counsel sought impeach credibility key prosecution witnesses testimony defense investigator regarding statements previously obtained witnesses investigator investigator called witness district stated copy investigator report inspected edited camera excise references matters relevant statements submitted prosecution inspection completion investigator testimony defense counsel said intend produce report ruled investigator testify interviews witnesses appeals considering ruling reversible error held fifth amendment fed rule crim proc prohibited disclosure condition imposed held proper case prosecution well defense invoke federal judiciary inherent power require production previously recorded witness statements facilitate full disclosure relevant facts investigator report might provide critical insight issues credibility investigator testimony raise hence highly relevant issues pp fifth amendment privilege compulsory personal defendant extend testimony statements third parties called witnesses trial instance fact statements third parties elicited defense investigator respondent behalf convert respondent personal communications requiring production sense compel respondent witness extort communications pp rule whose language history indicate addresses pretrial discovery imposes constraint district power condition impeachment testimony respondent witness production relevant portions report fact rule incorporates jencks act limitation shows contrary intent convert rule general limitation trial broad discretion evidentiary questions trial pp qualified privilege derived attorney doctrine available prevent disclosure investigative report since respondent electing present investigator witness waived privilege respect matters covered testimony pp within district discretion assure jury hear investigator full testimony rather truncated portion favorable respondent ruling contrary respondent contention deprive sixth amendment rights compulsory process amendment confer right present testimony free legitimate demands adversarial system invoked justification presenting might pp powell delivered opinion burger brennan stewart marshall blackmun joined parts ii iii white rehnquist joined white filed concurring opinion rehnquist joined post douglas took part consideration decision case paul friedman argued cause briefs solicitor general bork acting assistant attorney general keeney deputy solicitor general frey sidney glazer ivan michael schaeffer nicholas allis argued cause respondent brief john van de kamp briefs amici curiae urging affirmance filed john cleary california public defenders assn et federal public defender new jersey justice powell delivered opinion criminal trial defense counsel sought impeach credibility key prosecution witnesses testimony defense investigator regarding statements previously obtained witnesses investigator question presented whether circumstances federal trial may compel defense reveal relevant portions investigator report prosecution use appeals ninth circuit concluded granted certiorari reverse respondent tried convicted charges arising armed robbery federally insured bank significant evidence linking crime identification testimony two witnesses bank teller salesman bank robbery respondent offered alibi appeals recognized strongest defense centered around attempts discredit eyewitnesses defense efforts impeach gave rise events led decision course preparing respondent defense investigator defense interviewed witnesses preserved essence conversations written report witnesses testified prosecution respondent counsel relied report conducting counsel asked bank teller whether recalled told investigator seen back man identified respondent witness replied remember making statement allowed despite defense counsel initial objection refresh recollection referring portion investigator report prosecutor also allowed see briefly relevant portion report witness thereafter testified although report indicated told investigator seen respondent back fact seen continued insist respondent bank robber witness acknowledged spoken defense investigator respondent counsel twice inquired whether told investigator blacks looked alike instance witness denied made statement prosecution sought inspection relevant portion investigator report respondent counsel objected declined order disclosure time ruled required investigator testified witnesses alleged statements witness stand advised examine investigator report camera excise reference matters relevant precise statements issue prosecution completed case respondent called investigator defense witness reiterated copy report inspected edited camera submitted government counsel completion investigator impeachment testimony respondent counsel stated intend produce report ruled investigator allowed testify interviews witnesses appeals ninth circuit acknowledging trial ruling constituted limited seemingly judicious restriction nevertheless considered reversible error citing wright app found fifth amendment prohibited disclosure condition imposed case held fed rule crim proc framed exclusively terms pretrial discovery precluded prosecutorial discovery trial well accord wright supra respect think erred ii dual aim criminal justice system guilt shall escape innocence suffer berger end placed confidence adversary system entrusting primary responsibility developing relevant facts determination guilt innocence made see nixon williams florida elkins frankfurter dissenting adversary system depends primarily parties presentation exploration relevant facts judiciary limited role referee supervisor compulsory processes stand available require presentation evidence grand jury nixon supra kastigar murphy waterfront white concurring recently observed nixon supra elected employ adversary system criminal justice parties contest issues law need develop relevant facts adversary system fundamental comprehensive ends criminal justice defeated judgments founded partial speculative presentation facts integrity judicial system public confidence system depend full disclosure facts within framework rules evidence ensure justice done imperative function courts compulsory process available production evidence needed either prosecution defense case defense proposed call investigator impeach identification testimony prosecution eyewitnesses evident investigator testify witness recollection appearance individual identified respondent considerably less clear earlier time trial also appeared investigator one witness differed even witness told interview investigator contemporaneous report might provide critical insight issues credibility investigator testimony raise assist jury determining extent investigator testimony actually discredited prosecution witnesses example report failed mention purported statement one witness blacks looked alike jury might disregard investigator version altogether hand statement appeared contemporaneously recorded report tend strongly corroborate investigator version interview diminish substantially reliability witness identification therefore apparent trial judge investigator report highly relevant critical issue credibility context production report might substantially enhance search truth williams florida must determine whether compelling production precluded privilege available defense circumstances case iii appeals concluded fifth amendment renders criminal discovery basically oneway street like many generalizations constitutional law one broad relationship accused fifth amendment rights prosecution ability discover materials trial must identified discriminating manner fifth amendment privilege compulsory intimate personal one protects private inner sanctum individual feeling thought proscribes state intrusion extract couch see also bellis white noted couch supra privilege personal privilege adheres basically person information may incriminate instance disclosure relevant portions defense investigator report impinge fundamental values protected fifth amendment order limited statements allegedly made third parties available witnesses prosecution defense respondent prepare report suggestion portions subject disclosure order reflected information conveyed investigator fact statements third parties elicited defense investigator respondent behalf convert respondent personal communications requiring production investigator therefore sense compel respondent witness extort communications thus conclude fifth amendment privilege compulsory personal defendant extend testimony statements third parties called witnesses trial appeals reliance constitutional guarantee bar disclosure ordered misplaced appeals also held fed rule crim proc deprived trial power order disclosure relevant portions investigator report acknowledging rule appears control pretrial discovery nonetheless determined reference jencks act signaled intention rule control trial practice well agree language history rule indicate addresses pretrial discovery rule requires motion discovery filed within days arraignment reasonable later time may permit commands include relief sought movant provision viewed light advisory committee admonition designed encourage promptness filing enable district avoid unnecessary delay multiplication motions see advisory committee notes rule pretrial focus rule becomes apparent government right discovery arises defendant successfully sought discovery subsections confined matters defendant intends produce trial fed rule crim proc hardly suggests intention rule limit power order production trial begun finally advisory committee notes emphasize pretrial character notes repeatedly characterize rule provision governing pretrial disclosure never suggesting intended constrict district control evidentiary questions arising trial pp incorporation jencks act limitation pretrial right discovery provided rule express contrary intent restricts defendant right pretrial discovery manner reconciles provision jencks act limitation trial discretion evidentiary matters certainly convert rule general limitation trial broad discretion evidentiary questions trial cf giles maryland fortas concurring judgment conclude therefore rule imposes constraint district power condition impeachment testimony respondent witness production relevant portions investigative report extending rule trial context appeals erred iv respondent contends doctrine exempts investigator report disclosure trial agree doctrine applies criminal litigation well civil find protection unavailable case doctrine recognized hickman taylor reflects strong public policy underlying orderly prosecution defense legal claims see also jackson concurring observed historically lawyer officer bound work advancement justice faithfully protecting rightful interests clients performing various duties however essential lawyer work certain degree privacy free unnecessary intrusion opposing parties counsel proper preparation client case demands assemble information sift considers relevant irrelevant facts prepare legal theories plan strategy without undue needless interference historical necessary way lawyers act within framework system jurisprudence promote justice protect clients interests work reflected course interviews statements memoranda correspondence briefs mental impressions personal beliefs countless tangible intangible ways aptly though roughly termed circuit appeals case work product lawyer materials open opposing counsel mere demand much put writing remain unwritten attorney thoughts heretofore inviolate inefficiency unfairness sharp practices inevitably develop giving legal advice preparation cases trial effect legal profession demoralizing interests clients cause justice poorly served although doctrine frequently asserted bar discovery civil litigation role assuring proper functioning criminal justice system even vital interests society accused obtaining fair accurate resolution question guilt innocence demand adequate safeguards assure thorough preparation presentation side case core doctrine shelters mental processes attorney providing privileged area within analyze prepare client case doctrine intensely practical one grounded realities litigation adversary system one realities attorneys often must rely assistance investigators agents compilation materials preparation trial therefore necessary doctrine protect material prepared agents attorney well prepared attorney moreover concerns reflected doctrine disappear trial begun disclosure attorney efforts trial surely disclosure pretrial discovery disrupt orderly development presentation case need however undertake delineate scope doctrine trial instance clear defense waived right may existed invoke protections privilege derived doctrine absolute like qualified privileges may waived respondent sought adduce testimony investigator contrast recollection contested statements prosecution witnesses respondent electing present investigator witness waived privilege respect matters covered testimony respondent advance doctrine sustain unilateral testimonial use materials elect testify behalf thereafter assert fifth amendment privilege resist matters reasonably related brought direct examination see mcgautha california finally examination record persuades us district properly exercised discretion instance authorized general fishing expedition defense files indeed even defense investigator report cf wright app rather considered ruling quite limited scope opening prosecution scrutiny portion report related testimony investigator offer discredit witnesses identification testimony afforded respondent maximum opportunity assist avoiding unwarranted disclosure exercise informed choice call investigator testimony thereby open report examination preclusion sanction entirely proper method assuring compliance order respondent argument ruling deprived sixth amendment rights compulsory process misconceives issue district bar investigator testimony cf washington texas merely prevented respondent presenting jury partial view credibility issue adducing investigator testimony thereafter refusing disclose contemporaneous report might offer critical insights sixth amendment confer right present testimony free legitimate demands adversarial system one invoke sixth amendment justification presenting might deciding within discretion assure jury hear full testimony investigator rather truncated portion favorable respondent think artificial indeed deprive power effectuate judgment find constitutional significance fact instance able exclude testimony advance rather receive evidence thereafter charge jury disregard respondent counsel refused said produce report judgment appeals ninth circuit therefore reversed footnotes counsel government complained portion report produced time illegible witness testimony indicates however difficulty reading essence district order follows investigator allowed testify necessary portions investigative report contain statements impeached witness turned prosecution nothing else report testifies way impeaching statements made either two witnesses view government entitled look report portions report contain alleged impeaching statements witnesses app although portion report containing bank teller alleged statement previously revealed marked identification introduced evidence discussion investigator testimony subsequently arose counsel government noted limited opportunity glance statement requested disclosure portion report well statement purportedly made salesman indicated bank teller deny made statement recorded investigator report thus possible investigator testimony point constituted impeachment statements witness within contemplation order given rise duty disclosure counsel pursue point however seek clarification issue respondent view failure develop issue trial urge ground reversal respondent maintain initial disclosure bank teller statement sufficed satisfy order therefore consider two alleged statements report impeaching statements subject disclosure investigator testified discretion recognized jencks subsequently circumscribed congress jencks act see generally palermo rule new federal rules evidence entitles adverse party inspect writing relied refresh recollection witness testifying rule also authorizes disclosure writings relied refresh recollection testifying deems necessary interests justice party obtaining writing thereafter use witness introduce evidence portions relate witness testimony federal rules evidence effect time respondent trial occasion consider applicability situation presented purpose relevant part fifth amendment prevent compelled protect private information testimony demanded witness may private indeed unless incriminating protected amendment unless protected one evidentiary privileges must disclosed maness meyers white concurring result moreover constitutional guarantee protects forced individual disclosure testimonial communicative nature schmerber california see also wade gilbert california rule establishes government reciprocal right pretrial discovery excepts reports memoranda internal defense documents made defendant attorneys agents connection investigation defense case statements made defendant government defense witnesses prospective government defense witnesses defendant agents attorneys rule therefore authorize pretrial discovery investigator report proposed amendments federal rules criminal procedure leave subsection substantially unchanged see proposed rule criminal procedure rule imposes duty notify opposing counsel additional materials previously requested inspected subject discovery inspection rule contemplates obligation continue trial obligation rule depends however previous request order discovery fact provision may effect parties conduct trial convert rule general limitation inherent power control evidentiary matters note also commentators considered rule suggested directed control evidentiary questions arising trial see nakell criminal discovery defense prosecution developing constitutional considerations rev rezneck new federal rules criminal procedure geo note prosecutorial discovery proposed rule harv rev recognized hickman taylor doctrine distinct broader privilege number state federal decisions recognized role doctrine criminal law applied protections files prosecution accused alike see state bowen cert denied state ex rel polley superior santa cruz county peel state app grand jury proceedings duffy terkeltoub supp sdny sole issue hickman related materials prepared attorney courts thereafter disagreed whether doctrine applied well materials prepared behalf see proposed amendments federal rules civil procedure relating discovery moore federal practice ed necessarily must view reflected federal rules civil procedure see rule rule criminal rules well see rules cf cleary mccormick evidence ed constitutes waiver respect materials depends course upon circumstances counsel necessarily makes use throughout trial notes documents internal materials prepared present adequately client case often relies examining witnesses used normally waiver counsel attempts make testimonial use materials normal rules evidence come play respect production documents accept respondent contention disclosure order violated sixth amendment right effective assistance counsel claim predicated assumption disclosure defense investigator notes similar cases compromise counsel ability investigate prepare defense case thoroughly respondent maintains even limited disclosure required case impair relationship trust confidence client attorney inhibit members defense team gathering information essential effective preparation case see american bar association project standards criminal justice defense function app draft short answer disclosure order resulted respondent voluntary election make testimonial use investigator report moreover apart waiver think concern voiced respondent fails recognize limited conditional nature order respondent additionally argues certain statements prosecution district exclusion purported expert testimony justify reversal verdict appeals decision affirmed grounds appeals rejected respondent challenge exclusion testimony proffered expert respondent present issue question involving challenged prosecutorial statements certiorari without questioning jurisdiction consider alternative grounds affirmance decision cf langnes green dandridge williams see generally stern certainty confusion harv rev consider contentions worthy consideration involves issue committed trial discretion absence strong suggestion abuse discretion indication issues sufficient general importance justify grant certiorari decline entertain justice white justice rehnquist joins concurring concur judgment parts ii iii opinion write misgivings meaning part iv opinion appears held part iv opinion whatever protection defense investigator notes interviews witnesses might otherwise protection lost investigator testified interviews agree also seems sensible however decide protection notes first place reaching waiver issue accordingly believe doctrine hickman taylor extended wholesale historic role limitation nonevidentiary material may subject pretrial discovery unprecedented role limitation trial judge power compel production evidentiary matter trial add following doctrine hickman taylor supra viewed almost exclusively limitation ability party obtain pretrial discovery viewed limitation trial broad discretion evidentiary questions trial ante problem discussed hickman taylor arose precisely addition accelerating time party obtain evidentiary matter adversary new federal rules civil procedure greatly expanded nature material subject pretrial disclosure rules party first time entitled know advance opponent evidence entitled obtain opponent nonprivileged information existence whereabouts facts relevant case even though information evidentiary hickman taylor supra utilizing rules plaintiff hickman taylor sought discovery statements obtained defense counsel witnesses events relevant lawsuit evidentiary use help prepare examine witnesses make sure ha overlooked nothing emphasis added concluding statements produced treated matter entirely one involving plaintiff entitlement pretrial discovery new federal rules carefully limited opinion accordingly relevant rule view rule face required production witness statements unless privileged nonetheless expressly stated request witness statements denied subject matter privileged although noting privilege applies england concept used rules request falls outside arena discovery emphasis added stated essential lawyer work certain degree privacy concluded effect giving one lawyer work particularly strategy legal theories mental impressions another demoralizing effect legal profession noted witness statements might admissible evidence circumstances might usable impeach corroborate witness however concluded case plaintiff wanted statements preparation shown reason obtain everything sought work rather utilizing adversary conclusion work product lawyer privileged made much difficult support result nothing expressed rule supported result forced explain decision stating rule discovery rules adopted members bar general certainly believe contemplate files mental processes lawyers thereby opened free scrutiny adversaries emphasis added since hickman taylor supra congress cases commentators uniformly continued view work product doctrine solely limitation pretrial discovery qualified evidentiary privilege congress became involved problem first time civil area solely accepting proposed amendment fed rule civ proc incorporated much held hickman taylor supra respect pretrial discovery see advisory committee explanatory statement criminal area congress enacted accepted fed rule crim proc former prevents pretrial discovery witness statements government latter prevents pretrial discovery witness statements defense neither limits power trial order production evidence prior statements witnesses testified trial exception materials type discussed part ii infra research uncovered application rule lower courts since hickman prevent production evidence impeaching otherwise trial several examples cases rejecting approach similarly commentators treated attorney rule solely limitation pretrial discovery moore federal practice ed wright miller federal practice procedure barron holtzoff federal practice procedure wright ed expressly stated apply evidentiary matter james civil procedure moore federal practice reasons largely confining rule role limitation pretrial discovery compelling first injury factfinding process far greater rule keeps evidence fact finder simply keeps advance disclosure evidence party keeps leads evidence developed adversary well able find main party seeks discover statement made opposing party order prepare trial obtain substantial equivalent means fed rule civ proc interviewing witness prior inconsistent statement possession adversary however sought evidentiary purposes impeach witness testifies purpose unique token danger perceived hickman party case decline prepare hopes eventually using adversary preparation absent disclosure take place trial indeed difficult articulate reason statements subject matter witness testimony turned adversary witness testified statement either consistent witness testimony case useless disclosure harmless inconsistent unquestioned value jury claim disclosure statement lead trial collateral confusing issues rejected jencks congress legislation followed strong negative implication hickman taylor supra rule apply evidentiary requests trial became holding jencks supra defendant criminal case sought production government trial prior statements made witnesses subject matter testimony government argued inter alia production violate legitimate interest party including government safeguarding privacy files held government said deny disclosure prior statements might used impeach witnesses deny accused evidence relevant material defense emphasis added also rejected unrealistic rule require defendant demonstrate impeachment value prior statements disclosure held entitlement disclosure use established reports shown relate testimony witness thus reject notion work product limitation trial judge discretion order production evidentiary matter trial affirmatively held prior statements witness subject testimony kind evidentiary matter adversary entitled indeed even pretrial discovery area rule apply notions thought insufficient prevent discovery evidentiary impeachment material hickman taylor stated mean say written materials obtained prepared adversary counsel eye toward litigation necessarily free discovery cases relevant nonprivileged facts remain hidden attorney file production facts essential preparation one case discovery may properly written statements documents might certain circumstances admissible evidence give clues existence location relevant facts might useful purposes impeachment corroboration emphasis added accordingly appear one exception discussed notions hickman taylor supra impose restrictions trial judge ordering production evidentiary matter trial notions apply limited way party efforts obtain evidence pretrial pursuant available discovery devices notions supply qualified discovery immunity respect witness statements event ii one aspects rule hickman taylor supra application evidentiary requests trial majority concurring opinions hickman taylor pains distinguish production statements written witness possession lawyer statements made orally witness written lawyer production use oral statements written lawyer create substantial risk lawyer testify majority said make attorney much less officer much ordinary witness justice jackson concurring stated every lawyer dislikes take witness stand grave reasons partly role almost invariably poor witness steps professional character regrets profession discourages practice advocated one force witness seen done witnesses stories wants remarks hickman taylor supra made context request pretrial discovery application evidentiary use lawyers memoranda witness interviews trial unnecessary however decide case whether policies putting issue credibility lawyer sum jury outweigh jury interest obtaining relevant information whether jencks supra viewed expressing preference disclosure facts case creator memorandum trial lawyer investigator event called witness defense accordingly reverse judgment quite apart waiver rule hickman taylor supra application request trial evidentiary impeachment material made case criminal discovery rules time factor great might otherwise appear federal rule crim proc permits discovery time trial fed rule crim proc evidentiary matter may obtained pursuant subpoena advance trial discretion trial judge prior federal rules requests witness statements granted denied basis whether evidence nonprivileged main production denied either witness statements evidence inadmissible hearsay unless witness testifies party entitled advance knowledge adversary case statements made client agent attorney thus covered privilege moore federal practice ed cases cited therein cases hold witness statements generally privileged evidentiary cause decide whether notion protect discovery since nondiscoverable anyway applicable discovery rules see walker struthers justice jackson concurrence even express point question simply whether demand authorized rules relating various aspects discovery justice jackson also emphasized witness statements involved hickman taylor neither evidence privileged indeed material described falling umbrella qualify evidence lawyer mental impressions almost never evidence statements witness generally inadmissible hearsay statements become evidence witness testifies trial usually impeachment evidence case course involves situation relevant witness testify thus presents question involved hickman taylor whether prior statements disclosed trial judge power evidentiary matters trial opinion cites fed rule crim proc containing rule correctly notes rule directed control evidentiary questions arising trial seems supplies better ground decision waiver majority cite one case terkeltoub supp sdny referred doctrine preventing government inquiring lawyer grand jury whether participated suborning perjury prospective witness preparing criminal case trial event grand jury investigation respects similar pretrial discovery compare grand jury proceedings duffy schwimmer cert denied proper scope inquiry broad used way preparing later criminal trial example split authority whether rule applies irs tax investigations compare mckay brown shaw wuttke state ex rel state highway steinkraus du pont de nemours phillips petroleum del matles supp edny sun oil ed gates jencks quoted language chief justice marshall burr cas paper possession opposite party statement contents applicability expected person claims production precisely knowing contents cummings bell telephone pennsylvania ed marks gas service supp wd mo maginnis westinghouse electric supp ed la julius hyman american motorists ins parrett ford motor wd mo scuderi boston ins del involving situation member litigation team witnessed event scene course preparing case trial ordered disclosure report event bourget government employees ins mccullough tool pan geo atlas sd tex life ins north america supp wd mo cf larocca state farm mutual automobile ins wd kennedy senyo wd preparation trial subject suit see also natta hogan james civil procedure holding jencks put rest claim prior statement disclosable adversary established evidentiary value ahead time specific proof inconsistent vetter lovett wd tex mcdonald prowdley wd tannenbaum walker ed fulton swift mont republic gear camera inspection cf goosman duie pyle cases contra see moore federal practice ed majority moreover concerns reflected doctrine disappear trial begun disclosure attorney efforts trial surely disclosure pretrial discovery disrupt orderly development presentation case need however undertake delineate scope doctrine trial instance clear defense waived right may existed invoke protections ante witness acknowledge making inconsistent statement lawyer even though lawyer recorded may offer document evidence without least calling lawyer witness authenticate document otherwise testify prior statement porter app fiorillo gajewski cert newman travelers ins dykes alu chiarella modified rehearing vacated one petitioner cert denied petitioner sub nom stancin clancy rev grounds cases held records witness statements made prosecutors disclosable hilbrich cert reh aviles saunders app smaldone cert cf canaday state bowen reached contrary result state law conflict arose among lower federal courts question whether work product members litigation team lawyer protected discovery rule hickman taylor supra ghent development since hickman taylor attorney work product doctrine proposed amendments federal rules civil procedure relating discovery respect discovery civil cases fed rule civ proc conflict resolved amendments affording protection documents party representative whether lawyer purpose rule protecting work product remove incentive party might otherwise rely solely opponent preparation sensible treat preparation attorney investigator alike however policy lawyers testifying applies lawyer tries case