422 U.S. 225 (1975)
Respondent Robert Nobles was tried and convicted in federal district court on charges arising from an armed robbery of a federally insured bank.1 The prosecution's principal evidence consisted of identification testimony from a bank teller and a salesman who had been present during the robbery.2 Nobles presented an alibi but centered his defense on efforts to discredit the two eyewitnesses.3
In preparing for trial, a defense investigator hired by Nobles' counsel interviewed both eyewitnesses and recorded the substance of those conversations in a written report.4 During cross-examination of the bank teller, defense counsel asked whether the teller had told the investigator he saw only the back of the man identified as Nobles; the teller did not recall making the statement.5 The prosecutor was permitted to see a portion of the report briefly, after which the teller testified that he had actually seen more than the back and continued to identify Nobles.6
Defense counsel similarly cross-examined the salesman about whether he had told the investigator that all blacks looked alike to him; the salesman denied making the statement.7 The district court declined to order immediate disclosure but ruled that production of portions of the report would be required if the investigator later testified about the interviews.8 The court stated it would conduct an in camera review and excise any references to matters not relevant to the precise statements at issue.9
After the prosecution rested, the defense called the investigator as a witness.10 The court reiterated that an inspected and edited copy of the report would have to be provided to the government at the conclusion of the investigator's testimony.11 When defense counsel refused to produce the report, the court ruled that the investigator could not testify about his interviews with the two witnesses.12
The Court of Appeals for the Ninth Circuit reversed the conviction.13 The Supreme Court granted certiorari.14
Whether a federal trial court may compel production of portions of a defense investigator's report when the investigator is called as a defense witness to testify about prior statements made by prosecution witnesses?15
Yes. The district court properly exercised its discretion when it conditioned the investigator's testimony on production of portions of the report after Nobles called the investigator as a defense witness.18 The defense investigator interviewed the bank teller and the salesman and recorded their statements in a written report.19 During cross-examination the defense relied on the report to challenge the witnesses' identification testimony.20 The report was highly relevant to the critical issue of credibility because it could assist the jury in determining the extent to which the investigator's testimony actually discredited the prosecution's witnesses.21
The court limited its order to the portions related to the precise statements at issue.22 The court conducted an in camera review to excise irrelevant matters.23 The court afforded the defense the opportunity to assist in avoiding unwarranted disclosure rather than ordering a general fishing expedition into the defense files.24
A federal trial court may compel production of portions of a defense investigator's report when the investigator is called as a defense witness to testify about prior statements made by prosecution witnesses.25
Related opinions on this issue
Justice Blackmun concurred in the judgment.26 He agreed that the work-product doctrine applies in criminal cases.27 He agreed that the privilege was waived in this case with respect to the portions of the report relating to the statements of the bank teller and the salesman.28
He would not attempt to define the precise limits of the waiver.29 Those limits can be better defined in future cases as they arise.30 He also agreed that the District Court erred in ordering production of the entire report.31
Whether the Fifth Amendment privilege against compulsory self-incrimination bars a trial court from ordering disclosure of portions of the defense investigator's report?32
No. Disclosure of portions of the defense investigator's report would not impinge on the fundamental values protected by the Fifth Amendment.36 The court's order was limited to statements allegedly made by third parties who were available as witnesses to both the prosecution and the defense.37 Nobles did not prepare the report.38 There is no suggestion that the portions subject to the disclosure order reflected any information that he conveyed to the investigator.39
The fact that these statements of third parties were elicited by a defense investigator on Nobles' behalf does not convert them into Nobles' personal communications.40 Requiring their production from the investigator would not compel Nobles to be a witness against himself.41
The Fifth Amendment privilege against compulsory self-incrimination does not bar a trial court from ordering disclosure of portions of the defense investigator's report.42
Whether Federal Rule of Criminal Procedure 16 limits a district court's authority to order production of the investigator's report at trial?43
Federal Rule of Criminal Procedure 16 addresses only pretrial discovery.44 Its requirements show that motions must be filed within ten days after arraignment.45 The government's reciprocal right of discovery arises only after the defendant has successfully sought discovery.46 Rule 16 therefore imposes no constraint on a district court's power to order production of evidentiary matter once trial has begun.47
No. The language and history of Rule 16 indicate that it addresses only pretrial discovery.48 Rule 16 does not limit the court's power to order production once trial has begun.49 The district court ordered production during trial after the investigator was called as a witness.50 The rule's pretrial focus is confirmed by its timing requirements.51
The advisory committee notes repeatedly characterize it as a provision governing pretrial disclosure.52 The incorporation of the Jencks Act limitation reconciles the rule with statutory limits on pretrial discovery.53 That incorporation does not convert Rule 16 into a general limitation on the trial court's broad discretion over evidentiary questions at trial.54
Federal Rule of Criminal Procedure 16 does not limit a district court's authority to order production of the investigator's report at trial.55
Whether the work-product doctrine protects the defense investigator's report from disclosure at trial in these circumstances?56
No. Although the work-product doctrine applies to criminal cases, Nobles waived the privilege with respect to matters covered in the investigator's testimony.60 Nobles waived the privilege by electing to present the investigator as a witness to impeach the prosecution's eyewitnesses.61 The defense called the investigator to contrast his recollection of the contested statements with that of the bank teller and the salesman.62 The court limited production to the portion of the report that related to the testimony the investigator would offer.63
Nobles could not advance the work-product doctrine to sustain a unilateral testimonial use of work-product materials.64 He could no more do so than elect to testify in his own behalf and thereafter assert his Fifth Amendment privilege to resist cross-examination on matters reasonably related to those brought out in direct examination.65
The work-product doctrine does not protect the defense investigator's report from disclosure at trial in these circumstances.66
Related opinions on this issue
Justice White concurred in the judgment and in Parts II, III, and V of the opinion.67 He wrote separately because of misgivings about the meaning of Part IV.68 He preferred to decide what protection the notes had in the first place before reaching the waiver issue.69
He argued that the work-product doctrine of Hickman v. Taylor has been viewed almost exclusively as a limitation on the ability of a party to obtain pretrial discovery.70 He argued that the doctrine has not been viewed as a limitation on the trial judge's power to compel production of evidentiary matter at trial.71 He concluded that the work-product rule has no application to the request at trial for evidentiary and impeachment material made in this case, quite apart from waiver.72