author: Mr. Justice Powell Mr. Justice Douglas, Mr. Chief Justice Burger, Mr. Justice White,

text:
    ERZNOZNIK v. CITY OF JACKSONVILLE
    No. 73-1942.
    Argued February 26, 1975 —
    Decided June 23, 1975

      William H. Maness argued the cause and filed a brief for appellant.

      William Lee Allen argued the cause for appellee. With him on the brief was Harry Louis Shorstein.

      Briefs of amici curiae urging reversal were filed by James Bouras for the Motion Picture Association of America, Inc., and by Irwin Karp for the Authors League of America, Inc.

   Mr. Justice Powell

delivered the opinion of the Court.

This case presents a challenge to the facial validity of a Jacksonville, Fla., ordinance that prohibits showing films containing nudity by a drive-in movie theater when its screen is visible from a public street or place.

I

Appellant, Richard Erznoznik, is the manager of the University Drive-In Theatre in Jacksonville. On March 13, 1972, he was charged with violating § 330.313 of the municipal code for exhibiting a motion picture, visible from public streets, in which “female buttocks and bare breasts were shown.” The ordinance, adopted January 14, 1972, provides:

“330.313 Drive-In Theaters, Films Visible From Public Streets or Public Places. It shall be unlawful and it is hereby declared a public nuisance for any ticket seller, ticket taker, usher, motion picture projection machine operator, manager, owner, or any other person connected with or employed by any drive-in theater in the City to exhibit, or aid or assist in exhibiting, any motion picture, slide, or other exhibit in which the human male or female bare buttocks, human female bare breasts, or human bare pubic areas are shown, if such motion picture, slide, or other exhibit is visible from any public street or public place. Violation of this section shall be punishable as a Class C offense.”

Appellant, with the consent of the city prosecutor, successfully moved to stay his prosecution so that the validity of the ordinance could be tested in a separate declaratory action. In that action appellee, the city of Jacksonville, introduced evidence showing that the screen of appellant’s theater is visible from two adjacent public streets and a nearby church parking lot. There was also testimony indicating that people had been observed watching films while sitting outside the theater in parked cars and in the grass.

The trial court upheld the ordinance as a legitimate exercise of the municipality’s police power, and ruled that it did not infringe upon appellant’s First Amendment rights. The District Court of Appeal, First District of Florida, affirmed, 288 So. 2d 260 (1974), relying exclusively on Chemline, Inc. v. City of Grand Prairie, 364 F. 2d 721 (CA5 1966), which had sustained a similar ordinance. The Florida Supreme Court denied certiorari, three judges dissenting. 294 So. 2d 93 (1974). We noted probable jurisdiction, 419 U. S. 822 (1974), and now reverse.

II

Appellee concedes that its ordinance sweeps far beyond the permissible restraints on obscenity, see Miller v. California, 413 U. S. 15 (1973), and thus applies to films that are protected by the First Amendment. See Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495 (1952); Jenkins v. Georgia, 418 U. S. 153 (1974). Nevertheless, it maintains that any movie containing nudity which is visible from a public place may be suppressed as a nuisance. Several theories are advanced to justify this contention.

A

Appellee’s primary argument is that it may protect its citizens against unwilling exposure to materials that may be offensive. Jacksonville’s ordinance, however, does not protect citizens from all movies that might offend; rather it singles out films containing nudity, presumably because the lawmakers considered them especially offensive to passersby.

This Court has considered analogous issues — pitting the First Amendment rights of speakers against the privacy rights of those who may be unwilling viewers or auditors — in a variety of contexts. See, e. g., Kovacs v. Cooper, 336 U. S. 77 (1949); Breard v. Alexandria, 341 U. S. 622, 641-645 (1951); Cohen v. California, 403 U. S. 15 (1971); Lehman v. City of Shaker Heights, 418 U. S. 298 (1974). See generally Haiman, Speech v. Privacy: Is There A Right Not To Be Spoken To?, 67 Nw. U. L. Rev. 153 (1972). Such cases demand delicate balancing because:

“In th[e] sphere of collision between claims of privacy and those of [free speech or] free press, the interests on both sides are plainly rooted in the traditions and significant concerns of our society.” Cox Broadcasting Corp. v. Cohn, 420 U. S. 469, 491 (1975).

Although each case ultimately must depend on its own specific facts, some general principles have emerged. A State or municipality may protect individual privacy by enacting reasonable time, place, and manner regulations applicable to all speech irrespective of content. See Kovacs v. Cooper, supra; Cox v. Louisiana, 379 U. S. 536, 554 (1965); Adderley v. Florida, 385 U. S. 39 (1966). But when the government, acting as censor, undertakes selectively to shield the public from some kinds of speech on the ground that they are more offensive than others, the First Amendment strictly limits its power. See, e. g., Police Dept. of Chicago v. Mosley, 408 U. S. 92 (1972); Fowler v. Rhode Island, 345 U. S. 67 (1953); Kovacs v. Cooper, supra, at 97 (Jackson, J., concurring). Such selective restrictions have been upheld only when the speaker intrudes on the privacy of the home, see Rowan v. Post Office Dept., 397 U. S. 728 (1970), or the degree of captivity makes it impractical for the unwilling viewer or auditor to avoid exposure. See Lehman v. City of Shaker Heights, supra. As Mr. Justice Harlan cautioned:

“The ability of government, consonant with the Constitution, to shut off discourse solely to protect others from hearing it is . . . dependent upon a showing that substantial privacy interests are being invaded in an essentially intolerable manner. Any broader view of this authority would effectively empower a majority to silence dissidents simply as a matter of personal predilections.” Cohen v. California, 403 U. S., at 21.

The plain, if at times disquieting, truth is that in our pluralistic society, constantly proliferating new and ingenious forms of expression, “we are inescapably captive audiences for many purposes.” Rowan v. Post Office Dept., supra, at 736. Much that we encounter offends our esthetic, if not our political and moral, sensibilities. Nevertheless, the Constitution does not permit government to decide which types of otherwise protected speech are sufficiently offensive to require protection for the unwilling listener or viewer. Rather, absent the narrow circumstances described above, the burden normally falls upon the viewer to “avoid further bombardment of [his] sensibilities simply by averting [his] eyes.” Cohen v. California, supra, at 21. See also Spence v. Washington, 418 U. S. 405, 412 (1974).

The Jacksonville ordinance discriminates among movies solely on the basis of content. Its effect is to deter drive-in theaters from showing movies containing any nudity, however innocent or even educational. This discrimination cannot be justified as a means of preventing significant intrusions on privacy. The ordinance seeks only to keep these films from being seen from public streets and places where the offended viewer readily can avert his eyes. In short, the screen of a drive-in theater is not “so obtrusive as to make it impossible for an unwilling individual to avoid exposure to it.” Redrup v. New York, 386 U. S. 767, 769 (1967). Thus, we conclude that the limited privacy interest of persons on the public streets cannot justify this censorship of otherwise protected speech on the basis of its content.

B

Appellee also attempts to support the ordinance as an exercise of the city’s undoubted police power to protect children. Appellee maintains that even though it cannot prohibit the display of films containing nudity to adults, the present ordinance is a reasonable means of protecting minors from this type of visual influence.

It is well settled that a State or municipality can adopt more stringent controls on communicative materials available to youths than on those available to adults. See, e. g., Ginsberg v. New York, 390 U. S. 629 (1968). Nevertheless, minors are entitled to a significant measure of First Amendment protection, see Tinker v. Des Moines School Dist., 393 U. S. 503 (1969), and only in relatively narrow and well-defined circumstances may government bar public dissemination of protected materials to them. See, e. g., Interstate Circuit, Inc. v. City of Dallas, 390 U. S. 676, 1968); Rabeck v. New York, 391 U. S. 462 (1968).

In this case, assuming the ordinance is aimed at prohibiting youths from viewing the films, the restriction is broader than permissible. The ordinance is not directed against sexually explicit nudity, nor is it otherwise limited. Rather, it sweepingly forbids display of all films containing any uncovered buttocks or breasts, irrespective of context or pervasiveness. Thus it would bar a film containing a picture of a baby’s buttocks, the nude body of a war victim, or scenes from a culture in which nudity is indigenous. The ordinance also might prohibit newsreel scenes of the opening of an art exhibit as well as shots of bathers on a beach. Clearly all nudity cannot be deemed obscene even as to minors. See Ginsberg v. New York, supra. Nor can such a broad restriction be justified by any other governmental interest pertaining to minors. Speech that is neither obscene as to youths nor subject to some other legitimate proscription cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them. In most circumstances, the values protected by the First Amendment are no less applicable when government seeks to control the flow of information to minors. See Tinker v. Des Moines School Dist., supra. Cf. West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624 (1943). Thus, if Jacksonville's ordinance is intended to regulate expression accessible to minors it is overbroad in its proscription.

C

At oral argument appellee, for the first time, sought to justify its ordinance as a traffic regulation. It claimed that nudity on a drive-in movie screen distracts passing motorists, thus slowing the flow of traffic and increasing the likelihood of accidents.

Nothing in the record or in the text of the ordinance suggests that it is aimed at traffic regulation. Indeed, the ordinance applies to movie screens visible from public places as well as public streets, thus indicating that it is not a traffic regulation. But even if this were the purpose of the ordinance, it nonetheless would be invalid. By singling out movies containing even the most fleeting and innocent glimpses of nudity the legislative classification is strikingly underinclusive. There is no reason to think that a wide variety of other scenes in the customary screen diet, ranging from soap opera to violence, would be any less distracting to the passing motorist.

This Court frequently has upheld underinclusive classifications on the sound theory that a legislature may deal with one part of a problem without addressing all of it. See, e. g., Williamson v. Lee Optical Co., 348 U. S. 483, 488-489 (1955). This presumption of statutory validity, however, has less force when a classification turns on the subject matter of expression. “[Ajbove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” Police Dept. of Chicago v. Mosley, 408 U. S., at 95. Thus, “under the Equal Protection Clause, not to mention the First Amendment itself,” id., at 96, even a traffic regulation cannot discriminate on the basis of content unless there are clear reasons for the distinctions. See also Cox v. Louisiana, 379 U. S. 559, 581 (1965) (opinion of Black, J.). Cf. Williams v. Rhodes, 393 U. S. 23 (1968); Shapiro v. Thompson, 394 U. S. 618 (1969).

Appellee offers no justification, nor are we aware of any, for distinguishing movies containing nudity from all other movies in a regulation designed to protect traffic. Absent such a justification, the ordinance cannot be salvaged by this rationale.

Ill

Even though none of the reasons advanced by appellee will sustain the Jacksonville ordinance, it remains for us to decide whether the ordinance should be invalidated on its face. This Court has long recognized that a demonstrably overbroad statute or ordinance may deter the legitimate exercise of First Amendment rights. Nonetheless, when considering a facial challenge it is necessary to proceed with caution and restraint, as invalidation may result in unnecessary interference with a state regulatory program. In accommodating these competing interests the Court has held that a state statute should not be deemed facially invalid unless it is not readily subject to a narrowing construction by the state courts, see Dombrowski v. Pfister, 380 U. S. 479, 497 (1965), and its deterrent effect on legitimate expression is both real and substantial. See Broadrick v. Oklahoma, 413 U. S. 601, 612-615 (1973). See generally Note, The First Amendment Overbreadth Doctrine, 83 Harv. L. Rev. 844 (1970).

In the present case the possibility of a limiting construction appears remote. Appellee explicitly joined in this test of the facial validity of its ordinance by agreeing to stay appellant’s prosecution. Moreover, the ordinance by its plain terms is not easily susceptible of a narrowing construction. Indeed, when the state courts were presented with this overbreadth challenge they made no effort to restrict its application. Compare Coates v. City of Cincinnati, 402 U. S. 611, 612-613 (1971), and Brandenburg v. Ohio, 395 U. S. 444, 448-449 (1969), with Cox v. New Hampshire, 312 U. S. 569, 575-576 (1941), and Chaplinsky v. New Hampshire, 315 U. S. 568, 572-573 (1942). In these circumstances, particularly where as here appellee offers several distinct justifications for the ordinance in its broadest terms, there is no reason to assume that the ordinance can or will be decisively narrowed. See Gooding v. Wilson, 405 U. S. 518, 520-527 (1972). Cf. Grayned v. City of Rockford, 408 U. S. 104, 111-112 (1972); Time, Inc. v. Hill, 385 U. S. 374, 397 (1967).

Moreover, the deterrent effect of this ordinance is both real and substantial. Since it applies specifically to all persons employed by or connected with drive-in theaters, the owners and operators of these theaters are faced with an unwelcome choice: to avoid prosecution of themselves and their employees they must either restrict their movie offerings or construct adequate protective fencing which may be extremely expensive or even physically impracticable. Cf. Lake Carriers’ Assn. v. MacMullan, 406 U. S. 498, 513 (1972) (Powell, J., dissenting).

IV

In concluding that this ordinance is invalid we do not deprecate the legitimate interests asserted by the city of Jacksonville. We hold only that the present ordinance does not satisfy the rigorous constitutional standards that apply when government attempts to regulate expression. Where First Amendment freedoms are at stake we have repeatedly emphasized that precision of drafting and clarity of purpose are essential. These prerequisites are absent here. Accordingly the judgment below is

Reversed.

Mr. Justice Douglas,

concurring.

I join wholeheartedly in the Court’s view that the ordinance in issue here is fatally overinclusive in some respects and fatally underinclusive in others. I do not doubt that under proper circumstances, a narrowly drawn ordinance could be utilized within constitutional boundaries to protect the interests of captive audiences or to promote highway safety. In these days of heavy traffic, it is reasonable to attempt to remove all distractions that might increase accidents. These legitimate interests cannot, however, justify attempts to discriminate among movies on the basis of their content — a “pure” movie is apt to be just as distracting to drivers as an “impure” one, and to be just as intrusive upon the privacy of an unwilling but captive audience. Any ordinance which regulates movies on the basis of content, whether by an obscenity standard or by some other criterion, impermissibly intrudes upon the free speech rights guaranteed by the First and Fourteenth Amendments.

Mr. Chief Justice Burger,

with whom Mr. Justice Rehnquist joins, dissenting.

Although the Court pays lip service to the proposition that “each case ultimately must depend on its own specific facts,” ante, at 209, it strikes down Jacksonville City Code § 330.313 by a mechanical application of “general principles” distilled from cases having little to do with either this case or each other. Because I can accept neither that approach nor its result, I dissent.

The Court’s analysis seems to begin and end with the sweeping proposition that, regardless of the circumstances, government may not regulate any form of “communicative” activity on the basis of its content. Absent certain “special circumstances,” we are told, the burden falls upon the public to ignore offensive materials rather than upon their purveyor to take steps to shield them from public view. In four short sentences ^without reasoned support, ante, at 211-212, the Court concludes that Jacksonville’s ordinance does not pass muster under its tests, and therefore strikes it down.

None of the cases upon which the Court relies remotely implies that the Court ever intended to establish inexorable limitations upon state power in this area. Many cases upheld the regulation of communicative activity and did not purport to define the limits of the power to do so. E. g., Lehman v. City of Shaker Heights, 418 U. S. 298 (1974); Rowan v. Post Office Dept., 397 U. S. 728 (1970); Breard v. Alexandria, 341 U. S. 622 (1951); Kovacs v. Cooper, 336 U. S. 77 (1949). Other cases relied upon by the Court were either expressly or impliedly decided upon equal protection grounds and, although recognizing that First Amendment interests were involved, turned upon “the crucial question . . . whether there is an appropriate governmental interest suitably furthered by the differential treatment.” Police Dept. of Chicago v. Mosley, 408 U. S. 92, 95 (1972). See also Fowler v. Rhode Island, 345 U. S. 67 (1953). Such a standard necessarily requires particularized review. Finally, yet other of the cases cited by the Court were decided on vagueness and overbreadth. E. g., Cox v. Louisiana, 379 U. S. 536 (1965). Again, application of these doctrines requires scrutiny of the specific statute and activity involved rather than reliance upon generalizations. See, e. g., id., at 544-558.

In short, nothing in this Court’s prior decisions justifies disregard of the admonition that “the nature of the forum and the conflicting interests involved have remained important in determining the degree of protection afforded by the [First] Amendment to the speech in question.” Lehman v. City of Shaker Heights, supra, at 302-303 (plurality opinion of Blackmun, J.). Rather, in applying this principle in contexts similar to the instant case, members of this Court have cautioned that every medium of communication “is a law unto itself,” Kovacs v. Cooper, supra, at 97 (Jackson, J., concurring), and that the “tyranny of absolutes” should not be relied upon “to meet the problems generated by the need to accommodate the diverse interests affected by the motion pictures in compact modern communities.” Joseph Burstyn, Inc. v. Wilson, 343 U. S. 495, 518 (1952) (Frankfurter, J., concurring).

A careful consideration of the diverse interests involved in this case illustrates, for me, the inadequacy of the Court’s rigidly simplistic approach. In the first place, the conclusion that only a limited interest of persons on the public streets is at stake here can be supported only if one completely ignores the unique visual medium to which the Jacksonville ordinance is directed. Whatever validity the notion that passersby may protect their sensibilities by averting their eyes may have when applied to words printed on an individual’s jacket, see Cohen v. California, 403 U. S. 15 (1971), or a flag hung from a second-floor apartment window, see Spence v. Washington, 418 U. S. 405 (1974), it distorts reality to ápply that notion to the outsize screen of a drive-in movie theater. Such screens are invariably huge; indeed, photographs included in the record of this case show that the screen of petitioner’s theater dominated the view from public places including nearby residences and adjacent highways. Moreover, when films are projected on such screens the combination of color and animation against a necessarily dark background is designed to, and results in, attracting and holding the attention of all observers. See Note, Motion Pictures and the First Amendment, 60 Yale L. J. 696, 707-708 (1951). Similar considerations led Mr. Justice Brandéis, writing for the Court in Packer Corp. v. Utah, 285 U. S. 105 (1932), to conclude that there is a public interest in regulating billboard displays which may not apply to other forms of advertising:

“ 'Advertisements of this sort are constantly before the eyes of observers on the streets and in street cars to be seen without the exercise of choice or volition on their part. Other forms of advertising are ordinarily seen as a matter of choice on the part of the observer. The young people as well as the adults have the message of the billboard thrust upon them by all the arts and devices that skill can produce. In the case of newspapers and magazines, there must be some seeking by the one who is to see and read the advertisement. The radio can be turned off, but not so the billboard or street car placard. These distinctions clearly place this kind of advertisment in a position to be classified so that regulations or prohibitions may be imposed upon all within the class.’ ” Id., at 110.

So here, the screen of a drive-in movie theater is a unique type of eye-catching display that can be highly intrusive and distracting. Public authorities have a legitimate interest in regulating such displays under the police power; for example, even though traffic safety may not have been the only target of the ordinance in issue here, I think it not unreasonable for lawmakers to believe that public nudity on a giant screen, visible at night to hundreds of drivers of automobiles, may have a tendency to divert attention from their task and cause accidents.

No more defensible is the Court’s conclusion that Jacksonville’s ordinance is defective because it regulates only nudity. The significance of this fact is explained only in a footnote:

“Scenes of nudity in a movie, like pictures of nude persons in a book, must be considered as a part of the whole work. ... In this respect such nudity is distinguishable from the kind of public nudity traditionally subject to indecent-exposure laws.” Ante, at 211 n. 7.

Both the analogy and the distinction are flawed. Unlike persons reading books, passersby cannot consider fragments of drive-in movies as a part of the “whole work” for the simple reason that they see but do not hear the performance, cf. Note, supra, 60 Yale L. J., at 707, and n. 27; nor do drivers and passengers on nearby highways see the whole of the visual display. The communicative value of such fleeting exposure falls somewhere in the range of slight to nonexistent. Moreover, those persons who legitimately desire to consider the “work as a whole” are not foreclosed from doing so. The record shows that the film from which appellant’s prosecution arose was exhibited in several indoor theaters in the Jacksonville area. And the owner of a drive-in movie theater is not prevented from exhibiting nonobscene films involving nudity so long as he effectively shields the screen from public view. Thus, regardless of whether the ordinance involved here can be loosely described as regulating the content of a certain type of display, it is not a restriction of any “message.” Cf. Police Dept. of Chicago v. Mosley, supra, at 95-96; Grayned v. City of Rockford, 408 U. S. 104, 115 (1972). The First Amendment interests involved in this case are trivial at best.

On the other hand, assuming arguendo that there could be a play performed in a theater by nude actors involving genuine communication of ideas, the same conduct in a public park or street could be prosecuted under an ordinance prohibiting indecent exposure. This is so because the police power has long been interpreted to authorize the regulation of nudity in areas to which all members of the public have access, regardless of any incidental effect upon communication. A nudist colony, for example, cannot lawfully set up shop in Central Park or Lafayette Park, places established for the public generally. Cf. Paris Adult Theatre I v. Slaton, 413 U. S. 49, 67 (1973); Roth v. United States, 354 U. S. 476, 512 (1957) (Douglas, J., dissenting). Whether such regulation is justified as necessary to protect public mores or simply to insure the undistracted enjoyment of open areas by the greatest number of people — or for traffic safety — its rationale applies a fortiori to giant displays which through technology are capable of revealing and emphasizing the most intimate details of human anatomy.

In sum, the Jacksonville ordinance involved in this case, although no model of draftsmanship, is narrowly drawn to regulate only certain unique public exhibitions of nudity; it would be absurd to suggest that it operates to suppress expression of ideas. By conveniently ignoring these facts and deciding the case on the basis of absolutes the Court adds nothing to First Amendment analysis and sacrifices legitimate state interests. I would affirm the judgment of the Florida Court of Appeal.

Mr. Justice White,

dissenting.

The Court asserts that the State may shield the public from selected types of speech and allegedly expressive conduct, such as nudity, only when the speaker or actor invades the privacy of the home or where the degree of captivity of an unwilling listener is such that it is impractical for him to avoid the exposure by averting his eyes. The Court concludes “that the limited privacy interest of persons on the public streets cannot justify this censorship of otherwise protected speech on the basis of its content.” Ante, at 212. If this broadside is to be taken literally, the State may not forbid “expressive” nudity on the public streets, in the public parks, or any other public place since other persons in those places at that time have a “limited privacy interest” and may merely look the other way.

I am not ready to take this step with the Court. Moreover, by the Court’s own analysis, the step is an unnecessary one. If, as the Court holds in Part II-B of its opinion, the ordinance is unconstitutionally over-broad even as an exercise of the police power to protect children, it is fatally overbroad as to the population generally. Part II-A is surplusage. I therefore dissent.

      The movie, “Class of ’74,” had been rated “R” by the Motion Picture Association of America. An “R” rating indicates that youths may be admitted only when accompanied by a parent or guardian. See generally Friedman, The Motion Picture Rating System of 1968: A Constitutional Analysis of Self-Regulation by the Film Industry, 73 Col. L. Rev. 185 (1973). Although there is nothing in the record regarding the content of the movie, the parties agree that it includes pictures of uncovered female breasts and buttocks.

       The only other United States Court of Appeals to consider this question reached a contrary result. See Cinecom Theaters Midwest States, Inc. v. City of Fort Wayne, 473 F. 2d 1297 (CA7 1973).

       A local ordinance is deemed a state statute for purposes of invoking this Court’s jurisdiction under 28 U. S. C. § 1257 (2). See King Mfg. Co. v. City Council of Augusta, 277 U. S. 100 (1928).

        Rowan involved a federal statute that permits a person receiving a “pandering advertisement” which he believes to be “erotically arousing or sexually provocative" to instruct the Postmaster General to inform the sender that such mail is not to be sent in the future. The Court upheld the statute, emphasizing that individual privacy is entitled to greater protection in the home than on the streets and noting that "the right of every person ‘to be let alone’ must be placed in the scales with the right of others to communicate." See 397 U. S., at 736-738.

       In Lehman the Court sustained a municipality’s policy of barring political advertisements while permitting nonpolitical advertisements on city buses. The issue was whether the city had created a “public forum” and thereby obligated itself to accept all advertising. While concluding that no public forum had been established, both the plurality and concurring opinions recognized that the degree of captivity and the resultant intrusion on privacy is significantly greater for a passenger on a bus than for a person on the street. See 418 U. S. 298, 302-304 (opinion of Blackmun, J.), and id.., at 306-308 (Douglas, J., concurring). See also Public Utilities Comm’n v. Pollak, 343 U. S. 451, 467 (1952) (Douglas, J., dissenting).

       It has also been suggested that government may proscribe, by a properly framed law, “the willful use of scurrilous language calculated to offend the sensibilities of an unwilling audience.” Rosenfeld v. New Jersey, 408 U. S. 901, 905 (1972) (Powell, J., dissenting). Cf. Ginzburg v. United States, 383 U. S. 463 (1966). In such cases the speaker may seek to “force public confrontation with the potentially offensive aspects' of the work.” Id., at 470. It may not be the content of the speech, as much as the deliberate “verbal [or visual] assault,” Rosenfeld, supra, at 906, that justifies proscription. See Redrup v. New York, 386 U. S. 767, 769 (1967). In the present ease, however, appellant is not trying to reach, much less shock, unwilling viewers. Appellant manages a commercial enterprise which depends for its success on paying customers, not on freeloading passersby. Presumably, where economically feasible, the screen of a drive-in theater will be shielded from those who do not pay.

       Scenes of nudity in a movie, like pictures of nude persons in a book, must be considered as a part of the whole work. See Miller v. California, 413 U. S. 15, 24 (1973); Kois v. Wisconsin, 408 U. S. 229 (1972). In this respect such nudity is distinguishable from the kind of public nudity traditionally subject to indecent-exposure laws. See Roth v. United States, 354 U. S. 476, 512 (1957) (Douglas, J., dissenting) (“No one would suggest that the First Amendment permits nudity in public places”). Cf. United States v. O’Brien, 391 U. S. 367 (1968).
      The Chief Justice’s dissent, in response to this point, states that “[ujnlike persons reading books, passersby cannot consider fragments of drive-in movies as a part of the ‘whole work’ for the simple reason that they see but do not hear the performance . . . .” Post, at 222 (emphasis in original). At issue here, however, is not the viewing rights of unwilling viewers but rather the rights of those who operate drive-in theaters and the public that attends these establishments. The effect of the Jacksonville ordinance is to increase the cost of showing films containing nudity. See n. 8, infra. In certain circumstances theaters will avoid showing these movies rather than incur the additional costs. As a result persons who want to see such films at drive-ins will be unable to do so. It is in this regard that a motion picture must be considered as a whole, and not as isolated fragments or scenes of nudity.

       Such a deterrent, although it might not result in total suppression of these movies, is a restraint on free expression. See Speiser
        v. Randall, 357 U. S. 513, 518-519 (1958). The record does not indicate how much it would cost to block public view of appellant's theater. Such costs generally will vary with circumstances. In one case the expense was estimated at approximately a quarter million dollars. See Olympic Drive-In Theatre, Inc. v. City of Pagedale, 441 S. W. 2d 5, 8 (Mo. 1969).

       We are not concerned in this case with a properly drawn zoning ordinance restricting the location of drive-in theaters or with a nondiscriminatory nuisance ordinance designed to protect the privacy of persons in their homes from the visual and audible intrusions of such theaters.

       In Ginsberg the Court adopted a variation of the adult obscenity standards enunciated in Roth v. United States, 354 U. S. 476 (1957), and Memoirs v. Massachusetts, 383 U. S. 413 (1966) (plurality opinion) . In Miller v. California, supra, we abandoned the Roth-Memoirs test for judging obscenity with respect to adults. We have not had occasion to decide what effect Miller will have on the Ginsberg formulation. It is clear, however, that under any test of obscenity as to minors not all nudity would be proscribed. Rather, to be obscene “such expression must be, in some significant way, erotic.” Cohen v. California, 403 U. S. 15, 20 (1971). See Paris Adult Theatre I v. Slaton, 413 U. S. 49, 106-107 (1973) (Brennan, J., dissenting).

       The First Amendment rights of minors are not “co-extensive with those of adults.” Tinker v. Des Moines School Dist., 393 U. S. 503, 515 (1969) (Stewart, J., concurring). “[A] State may permissibly determine that, at least in some precisely delineated areas, a child — like someone in a captive audience — is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees.” Ginsberg v. New York, 390 U. S. 629, 649-650 (1968) (Stewart, J., concurring). In assessing whether a minor has the requisite capacity for individual choice the age of the minor is a significant factor. See Rowan v. Post Office Dept., 397 U. S., at 741 (Brennan, J., concurring).

       See Part III, infra.

       This is not to say that a narrowly drawn nondiseriminatory traffic regulation requiring screening of drive-in movie theaters from the view of motorists would not be a reasonable exercise of police power. See Police Dept. of Chicago v. Mosley, 408 U. S. 92, 98 (1972), and cases cited.

       In this respect the present case arises in a posture that differs from most challenges to a statute or ordinance considered by this Court. Typically in such cases the issue arises in a context where the statute or ordinance has been applied to allegedly unprotected activity. Thus, we are able to consider the constitutionality of the statute “as applied” as well as “on its face.”

       The only narrowing construction which occurs to us would be to limit the ordinance to movies that are obscene as to minors. Neither appellee nor the Florida courts have suggested such a limitation, perhaps because a rewriting of the ordinance would be necessary to reach that result.

       In this case appellant himself is a theater manager. Hence the statute’s deterrent effect acts upon him personally; he is not seeking to raise the hypothetical rights of others. See Breard v. Alexandria, 341 U. S. 622, 641 (1951).

       See Lehman v. City of Shaker Heights, 418 U. S. 298, 305 (1974) (Douglas, J., concurring in judgment); Public Utilities Comm’n v. Pollak, 343 U. S. 451, 467 (1952) (Douglas, J., dissenting).

       I adhere to my view that any state or federal regulation of obscenity is prohibited by the Constitution. Roth v. United States, 354 U. S. 476, 508-514 (1957) (dissenting); Miller v. California, 413 U. S. 15, 42-47 (1973) (dissenting); Paris Adult Theatre I v. Slaton, 413 U. S. 49, 70-73 (1973) (dissenting).

       For example, in a case similar to this one the screen measured 35 feet by 70 feet and stood 54 feet above the ground. Bloss v. Paris Township, 380 Mich. 466, 157 N. W. 2d 260 (1968).

       On my view of this case it is not necessary to deal with the issues discussed in Parts II-B, II-C, and III of the Court’s opinion.


source: Caselaw Access Project

author: Mr. Justice Powell Mr. Justice White,

license: Public Domain

text:
    UNITED STATES v. NOBLES
    No. 74-634.
    Argued April 23, 1975 —
    Decided June 23, 1975

      Paul L. Friedman argued the cause for the United States. With him on the briefs were Solicitor General Bork, Acting Assistant Attorney General Keeney, Deputy Solicitor General Frey, Sidney M. Glazer, and Ivan Michael Schaeffer.

      Nicholas B. Allis argued the cause for respondent. With him on the brief was John K. Van de Kamp.

      Briefs of amid curiae urging affirmance were filed by John J. Cleary for the California Public Defenders Assn, et al., and by the Federal Public Defender of New Jersey.

   Mr. Justice Powell

delivered the opinion of the Court.

In a criminal trial, defense counsel sought to impeach the credibility of key prosecution witnesses by testimony of a defense investigator regarding statements previously obtained from- the witnesses by the investigator. The question presented here is whether in these circumstances a federal trial court may compel the defense to reveal the relevant portions of the investigator’s report for the prosecution’s use in cross-examining him. The United States Court of Appeals for the Ninth Circuit concluded that it cannot. 501 F. 2d 146. We granted certiorari, 419 U. S. 1120 (1975), and now reverse.

I

Respondent was tried and convicted on charges arising from an armed robbery of a federally insured bank. The only significant evidence linking him to the crime was the identification testimony of two witnesses, a bank teller and a salesman who was in the bank during the robbery. Respondent offered an alibi but, as the Court of Appeals recognized, 501 F. 2d, at 150, his strongest defense centered around attempts to discredit these eyewitnesses. Defense efforts to impeach them gave rise to the events that led to this decision.

In the course of preparing respondent’s defense, an investigator for the defense interviewed both witnesses and preserved the essence of those conversations in a written report. When the witnesses testified for the prosecution, respondent’s counsel relied on the report in conducting their cross-examination. Counsel asked the bank teller whether he recalled having told the investigator that he had seen only the back of the man he identified as respondent. The witness replied that he did not remember making such a statement. He was allowed, despite defense counsel’s initial objection, to refresh his recollection by referring to a portion of the investigator’s report. The prosecutor also was allowed to see briefly the relevant portion of the report. The witness thereafter testified that although the report indicated that he told the investigator he had seen only respondent’s back, he in fact had seen more than that and continued to insist that respondent was the bank robber.

The other witness acknowledged on cross-examination that he too had spoken to the defense investigator. Respondent’s counsel twice inquired whether he told the investigator that “all blacks looked alike” to him, and in each instance the witness denied having made such a statement. The prosecution again sought inspection of the relevant portion of the investigator’s report, and respondent’s counsel again objected. The court declined to order disclosure at that time, but ruled that it would be required if the investigator testified as to the witnesses’ alleged statements from the witness stand. The court further advised that it would examine the investigator’s report in camera and would excise all reference to matters not relevant to the precise statements at issue.

After the prosecution completed its case, respondent called the investigator as a defense witness. The court reiterated that a copy of the report, inspected and edited in camera, would have to be submitted to Government counsel at the completion of the investigator’s impeachment testimony. When respondent’s counsel stated that he did not intend to produce the report, the court ruled that the investigator would not be allowed to testify about his interviews with the witnesses.

The Court of Appeals for the Ninth Circuit, while acknowledging that the trial court’s ruling constituted a “very limited and seemingly judicious restriction,” 501 F. 2d, at 151, nevertheless considered it reversible error. Citing United States v. Wright, 160 U. S. App. D. C. 57, 68, 489 F. 2d 1181, 1192 (1973), the court found that the Fifth Amendment prohibited the disclosure condition imposed in this case. The court further held that Fed. Rule Crim. Proc. 16, while framed exclusively in terms of pretrial discovery, precluded prosecutorial discovery at trial as well. 501 F. 2d, at 157; accord, United States v. Wright, supra, at 66-67, 489 F. 2d, at 1190-1191. In each respect, we think the court erred.

II

The dual aim of our criminal justice system is “that guilt shall not escape or innocence suffer,” Berger v. United States, 295 U. S. 78, 88 (1935). To this end, we have placed our confidence in the adversary system, entrusting to it the primary responsibility for developing relevant facts on which a determination of guilt or innocence can be made. See United States v. Nixon, 418 U. S. 683, 709 (1974); Williams v. Florida, 399 U. S. 78, 82 (1970); Elkins v. United States, 364 U. S. 206, 234 (1960) (Frankfurter, J., dissenting).

While the adversary system depends primarily on the parties for the presentation and exploration of relevant facts, the judiciary is not limited to the role of a referee or supervisor. Its compulsory processes stand available to require the presentation of evidence in court or before a grand jury. United States v. Nixon, supra; Kastigar v. United States, 406 U. S. 441, 443-444 (1972) ; Murphy v. Waterfront Comm’n, 378 U. S. 52, 93-94 (1964) (White, J., concurring). As we recently observed in United States v. Nixon, supra, at 709:

“We have elected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that compulsory process be available for the production of evidence needed either by the prosecution or by the defense.”

Decisions of this Court repeatedly have recognized the federal judiciary’s inherent power to require the prosecution to produce the previously recorded statements of its witnesses so that the defense may get the full benefit of cross-examination and the truth-finding process may be enhanced. See, e. g., Jencks v. United States, 353 U. S. 657 (1957); Gordon v. United States, 344 U. S. 414 (1953); Goldman v. United States, 316 U. S. 129 (1942); Palermo v. United States, 360 U. S. 343, 361 (1959) (Brennan, J., concurring in result). At issue here is whether, in a proper case, the prosecution can call upon that same power for production of witness statements that facilitate “full disclosure of all the [relevant] facts.” United States v. Nixon, supra, at 709.

In this case, the defense proposed to call its investigator to impeach the identification testimony of the prosecution’s eyewitnesses. It was evident from cross-examination that the investigator would testify that each witness’ recollection of the appearance of the individual identified as respondent was considerably less clear at an earlier time than it was at trial. It also appeared that the investigator and one witness differed even as to what the witness told him during the interview. The investigator’s contemporaneous report might provide critical insight into the issues of credibility that the investigator’s testimony would raise. It could assist the jury in determining the extent to which the investigator’s testimony actually discredited the prosecution’s witnesses. If, for example, the report failed to mention the purported statement of one witness that “all blacks looked alike,” the jury might disregard the investigator’s version altogether. On the other hand, if this statement appeared in the contemporaneously recorded report, it would tend strongly to corroborate the investigator’s version of the interview and to diminish substantially the reliability of that witness’ identification.

It was therefore apparent to the trial judge that the investigator’s report was highly relevant to the critical issue of credibility. In this context, production of the report might substantially enhance “the search for truth,” Williams v. Florida, 399 U. S., at 82. We must determine whether compelling its production was precluded by some privilege available to the defense in the circumstances of this case.

III

A

The Court of Appeals concluded that the Fifth Amendment renders criminal discovery “basically a one-way street.” 501 F. 2d, at 154. Like many generalizations in constitutional law, this one is too broad. The relationship between the accused’s Fifth Amendment rights and the prosecution’s ability to discover materials at trial must be identified in a more discriminating manner.

The Fifth Amendment privilege against compulsory self-incrimination is an “intimate and personal one,” which protects “a private inner sanctum of individual feeling and thought and proscribes state intrusion to extract self-condemnation.” Couch v. United States, 409 U. S. 322, 327 (1973); see also Beilis v. United States, 417 U. S. 85, 90-91 (1974); United States v. White, 322 U. S. 694, 698 (1944). As we noted in Couch, supra, at 328, the “privilege is a personal privilege: it adheres basically to the person, not to information that may incriminate him.”

In this instance disclosure of the relevant portions of the defense investigator’s report would not impinge on the fundamental values protected by the Fifth Amendment. 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. Respondent did not prepare the report, and there is no suggestion that the portions subject to the disclosure order reflected any information that he conveyed to the investigator. The fact that these statements of third parties were elicited by a defense investigator on respondent’s behalf does not convert them into respondent’s personal communications. Requiring their production from the investigator therefore would not in any sense compel respondent to be a witness against himself or extort communications from him.

We thus conclude that the Fifth Amendment privilege against compulsory self-incrimination, being personal to the defendant, does not extend to the testimony or statements of third parties called as witnesses at trial. The Court of Appeals’ reliance on this constitutional guarantee as a bar to the disclosure here ordered was misplaced.

B

The Court of Appeals also held that Fed. Rule Crim. Proc. 16 deprived the trial court of the power to order disclosure of the relevant portions of the investigator’s report. Acknowledging that the Rule appears to control pretrial discovery only, the court nonetheless determined that its reference to the Jencks Act, 18 U. S. C. § 3500, signaled an intention that Rule 16 should control trial practice as well. We do not agree.

Both the language and history of Rule 16 indicate that it addresses only pretrial discovery. Rule 16 (f) requires that a motion for discovery be filed “within 10 days after arraignment or . . . such reasonable later time as the court may permit,” and further commands that it include all relief sought by the movant. When this provision is viewed in light of the Advisory Committee’s admonition that it is designed to encourage promptness in filing and to enable the district court to avoid unnecessary delay or multiplication of motions, see Advisory Committee’s Notes on Rule 16, 18 U. S. C. App., p. 4494, the pretrial focus of the Rule becomes apparent. The Government’s right of discovery arises only after the defendant has successfully sought discovery under subsections (a) (2) or (b) and is confined to matters “which the defendant intends to produce at the trial.” Fed. Rule Crim. Proc. 16 (c). This hardly suggests any intention that the Rule would limit the court’s power to order production once trial has begun. Finally, the Advisory Committee’s Notes emphasize its pretrial character. Those notes repeatedly characterize the Rule as a provision governing pretrial disclosure, never once suggesting that it was intended to constrict a district court’s control over evidentiary questions arising at trial. 18 U. S. C. App., pp. 4493-4495.

The incorporation of the Jencks Act limitation on the pretrial right of discovery provided by Rule 16 does not express a contrary intent. It only restricts the defendant’s right of pretrial discovery in a manner that reconciles that provision with the Jencks Act limitation on the trial court’s discretion over evidentiary matters. It certainly does not convert Rule 16 into a general limitation on the trial court’s broad discretion as to evidentiary questions at trial. Cf. Giles v. Maryland, 386 U. S. 66, 101 (1967) (Fortas, J., concurring in judgment). We conclude, therefore, that Rule 16 imposes no constraint on the District Court’s power to condition the impeachment testimony of respondent’s witness on the production of the relevant portions of his investigative report. In extending the Rule into the trial context, the Court of Appeals erred.

IV

Respondent contends further that the work-product doctrine exempts the investigator’s report from disclosure at trial. While we agree that this doctrine applies to criminal litigation as well as civil, we find its protection unavailable in this case.

The work-product doctrine, recognized by this Court in Hickman v. Taylor, 329 U. S. 495 (1947), reflects the strong “public policy underlying the orderly prosecution and defense of legal claims.” Id., at 510; see also id., at 514U515 (Jackson, J., concurring). As the Court there observed:

“Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memoranda, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways — aptly though roughly termed by the Circuit Court of Appeals in this case as the ‘work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.” Id., at 510-511.

The Court therefore recognized a qualified privilege for certain materials prepared by an attorney “acting for his client in anticipation of litigation.” Id., at 508. See generally 4 J. Moore, Federal Practice ¶ 26.63 (2d ed. 1974); E. Cleary, McCormick on Evidence 204-209 (2d ed. 1972); Note, Developments in the Law — Discovery, 74 Harv. L. Rev. 940,1027-1046 (1961).

Although the work-product doctrine most frequently is asserted as a bar to discovery in civil litigation, its role in assuring the proper functioning of the criminal justice system is even more vital. The interests of society and the accused in obtaining a fair and accurate resolution of the question of guilt or innocence demand that adequate safeguards assure the thorough preparation and presentation of each side of the case.

At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client's case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself. Moreover, the concerns reflected in the work-product doctrine do not disappear once trial has begun. Disclosure of an attorney’s efforts at trial, as surely as disclosure during pretrial discovery, could disrupt the orderly development and presentation of his case. We need not, however, undertake here to delineate the scope of the doctrine at trial, for in this instance it is clear that the defense waived such right as may have existed to invoke its protections.

The privilege derived from the work-product doctrine is not absolute. Like other qualified privileges, it may be waived. Here respondent sought to adduce the testimony of the investigator and contrast his recollection of the contested statements with that of the prosecution’s witnesses. Respondent, by electing to present the investigator as a witness, waived the privilege with respect to matters covered in his testimony. Respondent can no more advance the work-product doctrine to sustain a unilateral testimonial use of work-product materials than he could 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. See, e. g., McGautha v. California, 402 U. S. 183, 215 (1971).

V

Finally, our examination of the record persuades us that the District Court properly exercised its discretion in this instance. The court authorized no general “fishing expedition” into the defense files or indeed even into the defense investigator’s report. Cf. United States v. Wright, 160 U. S. App. D. C. 57, 489 F. 2d 1181 (1973). Rather, its considered ruling was quite limited in scope, opening to prosecution scrutiny only the portion of the report that related to the testimony the investigator would offer to discredit the witnesses’ identification testimony. The court further afforded respondent the maximum opportunity to assist in avoiding unwarranted disclosure or to exercise an informed choice to call for the investigator’s testimony and thereby open his report to examination.

The court’s preclusion sanction was an entirely proper method of assuring compliance with its order. Respondent’s argument that this ruling deprived him of the Sixth Amendment rights to compulsory process and cross-examination misconceives the issue. The District Court did not bar the investigator’s testimony. Cf. Washington v. Texas, 388 U. S. 14, 19 (1967). It merely prevented respondent from presenting to the jury a partial view of the credibility issue by adducing the investigator’s testimony and thereafter refusing to disclose the contemporaneous report that might offer further critical insights. The Sixth Amendment does not confer the right to present testimony free from the legitimate demands of the adversarial system; one cannot invoke the Sixth Amendment as a justification for presenting what might have been a half-truth. Deciding, as we do, that it was within the court’s discretion to assure that the jury would hear the full testimony of the investigator rather than a truncated portion favorable to respondent, we think it would be artificial indeed to deprive the court of the power to effectuate that judgment. Nor do we find constitutional significance in the fact that the court in this instance was able to exclude the testimony in advance rather than receive it in evidence and thereafter charge the jury to disregard it when respondent’s counsel refused, as he said he would, to produce the report.

The judgment of the Court of Appeals for the Ninth Circuit is therefore

Reversed.

Mr. Justice Douglas took no part in the consideration or decision of this case.

Mr. Justice White,

with whom Mr. Justice Rehnquist joins, concurring.

I concur in the judgment and in Parts II, III, and V of the opinion of the Court. I write only because of misgivings about the meaning of Part IV of the opinion. The Court appears to have held in Part IV of its opinion only that whatever protection the defense investigator’s notes of his interviews with witnesses might otherwise have had, that protection would have been lost when the investigator testified about those interviews. With this I agree also. It seems to me more sensible, however, to decide what protection these notes had in the first place before reaching the “waiver” issue. Accordingly, and because I do not believe that the work-product doctrine of Hickman v. Taylor, 329 U. S. 495 (1947), can be extended wholesale from its historic role as a limitation on the nonevidentiary material which may be the subject of pretrial discovery to an unprecedented role as a limitation on the trial judge’s power to compel production of evidentiary matter at trial, I add the following.

I

Up until now the work-product doctrine of Hickman v. Taylor, supra, has been viewed almost exclusively as a limitation on the ability of a party to obtain pretrial discovery. It has not been viewed as a “limitation on the trial court’s broad discretion as to evidentiary questions at trial.” Ante, at 236. The problem discussed in Hickman v. Taylor arose precisely because, in addition to accelerating the time when a party could obtain evidentiary matter from his adversary, the new Federal Rules of Civil Procedure greatly expanded the nature of the material subject to pretrial disclosure. Under the Rules, a party was, for the first time, entitled to know in advance his opponent’s evidence and was entitled to obtain from his opponent nonprivileged “information as to the existence or whereabouts of facts” relevant to a case even though the “information” was not itself evidentiary. Hickman v. Taylor, supra, at 501. Utilizing these Rules, the plaintiff in Hickman v. Taylor sought discovery of statements obtained by defense counsel from witnesses to the events relevant to the lawsuit, not for evidentiary use but only “to help prepare himself to examine witnesses and to make sure that he ha[d] overlooked nothing.” 329 U. S., at 513 (emphasis added). In concluding that these statements should not be produced, the Court treated the matter entirely as one involving the plaintiff’s entitlement to pretrial discovery under the new Federal Rules, and carefully limited its opinion accordingly. The relevant Rule in the Court’s view, Rule 26, on its face required production of the witness statements unless they were privileged. Nonetheless, the Court expressly stated that the request for witness statements was to be denied “not because the subject matter is privileged” (although noting that a work-product “privilege” applies in England, 329 U. S., at 510 n. 9) as that concept was used in the Rules, but because the request “falls outside the arena of discovery.” Id., at 510 (emphasis added). The Court stated that it is essential that a lawyer work with a certain degree of privacy, and concluded that the effect of giving one lawyer’s work (particularly his strategy, legal theories, and mental impressions) to another would have a “demoralizing” effect on the legal profession. The Court then noted that witness statements might be admissible in evidence under some circumstances and might be usable to impeach or corroborate a witness. However, it concluded that in the case before it the plaintiff wanted the statements for preparation only and had shown no reason why he could not obtain everything he sought by doing his own work rather than utilizing that of his adversary.

The conclusion that the work product of a lawyer is not “privileged” made it much more difficult for the Court to support its result. Nothing expressed in the Rule supported its result, and the Court was forced to explain its decision by stating:

“When Rule 26 and the other discovery rules were adopted, this Court and the members of the bar in general certainly did not believe or contemplate that all the files and mental processes of lawyers were thereby opened to the free scrutiny of their adversaries.” Id., at 514. (Emphasis added.)

I am left with the firm conviction that the Court avoided the easier route to its decision for a reason. To have held an attorney's work product to be “privileged” would have been to limit its use at trial as evidence in those cases in which the work product qualified as evidence, see Report of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States, 5 F. R. D. 433, 460 (1946), and, as Mr. Justice Jackson stated in his concurring opinion, a party is entitled to anything which is “evidence in his case.” 329 U. S., at 515.

Since Hickman v. Taylor, supra, Congress, the cases, and the commentators have uniformly continued to view the “work product” doctrine solely as a limitation on pretrial discovery and not as a qualified evidentiary privilege. In 1970, Congress became involved with the problem for the first time in the civil area. It did so solely by accepting a proposed amendment to Fed. Rule Civ. Proc. 26, which incorporated much of what the Court held in Hickman v. Taylor, supra, with respect to pretrial discovery. See Advisory Committee’s explanatory statement, 28 U. S. C. App., p. 7778. In the criminal area, Congress has enacted 18 U. S. C. § 3500 and accepted Fed. Rule Crim. Proc. 16 (c). The former prevents pretrial discovery of witness statements from the Government; the latter prevents pretrial discovery of witness statements from the defense. Neither limits the power of the trial court to order production as evidence of prior statements of witnesses who have testified at trial.

With the exception of materials of the type discussed in Part II, infra, research has uncovered no application of the work-product rule in the lower courts since Hickman to prevent production of evidence — impeaching or otherwise — at trial; and there are several examples of cases rejecting such an approach.

Similarly, the commentators have all treated the attorney work-product rule solely as a limitation on pretrial discovery, e. g., 4 J. Moore, Federal Practice ¶¶ 26.-63-26.64 (2d ed. 1974); 8 C. Wright & A. Miller, Federal Practice and Procedure § 2026 (1970); 2A W. Barron & A. Holtzoff, Federal Practice and Procedure § 652 (Wright ed. 1961), and some have expressly stated that it does not apply to evidentiary matter. F. James, Civil Procedure 211 n. 13 (1965); 4 J. Moore, Federal Practice ¶ 16.23 [8.-4] (1963).

The reasons for largely confining the work-product rule to its role as a limitation on pretrial discovery are compelling. First of all, the injury to the factfinding process is far greater where a rule keeps evidence from the factfinder than when it simply keeps advance disclosure of evidence from a party or keeps from him leads to evidence developed by his adversary and which he is just as well able to find by himself. In the main, where a party seeks to discover a statement made to an opposing party in order to prepare for trial, he can obtain the “substantial equivalent ... by other means,” Fed. Rule Civ. Proc. 26 (b)(3), i. e., by interviewing the witness himself. A prior inconsistent statement in the possession of his adversary, however, when sought for evidentiary purposes — i. e., to impeach the witness after he testifies— is for that purpose unique. By the same token, the danger perceived in Hickman that each party to a case will decline to prepare in the hopes of eventually using his adversary’s preparation is absent when disclosure will take place only at trial. Indeed, it is very difficult to articulate a reason why statements on the same subject matter as a witness’ testimony should not be turned over to an adversary after the witness has testified. The statement will either be consistent with the witness’ testimony, in which case it will be useless and disclosure will be harmless; or it will be inconsistent and of unquestioned value to the jury. Any claim that disclosure of such a statement would lead the trial into collateral and confusing issues was rejected by this Court in Jencks v. United States, 353 U. S. 657 (1957), and by Congress in the legislation which followed.

The strong negative implication in Hickman v. Taylor, supra, that the work-product rule does not apply to evidentiary requests at trial became a holding in Jencks v. United States, supra. There a defendant in a criminal case sought production by the Government at trial of prior statements made by its witnesses on the same subject matter as their testimony. The Government argued, inter alia, that production would violate the “ ‘legitimate interest that each party- — including the Government — has in safeguarding the privacy of its files.’ ” 353 U. S., at 670. The Court held against the Government. The Court said that to deny disclosure of prior statements which might be used to impeach the witnesses was to “deny the accused evidence relevant and material to his defense,” id., at 667 (emphasis added). Also rejected as unrealistic was any rule which would require the defendant to demonstrate the impeachment value of the prior statements before disclosure, and the Court held that entitlement to disclosure for use in cross-examination is “established when the reports are shown to relate to the testimony of the witness.” Id., at 669. Thus, not only did the Court reject the notion that there was a “work product” limitation on the trial judge’s discretion to order production of evidentiary matter at trial, but it was affirmatively held that prior statements of a witness on the subject of his testimony are the kind of evidentiary matter to which an adversary is entitled.

Indeed, even in the pretrial discovery area in which the work-product rule does apply, work-product notions have been thought insufficient to prevent discovery of evidentiary and impeachment material. In Hickman v. Taylor, 329 U. S., at 511, the Court stated:

“We do not mean to say that all written materials obtained or prepared by an adversary’s counsel with an eye toward litigation are necessarily free from discovery in all cases. Where relevant and non-privileged facts remain hidden in an attorney’s file and where production of those facts is essential to the preparation of one’s case, discovery may properly be had. Such written statements and documents might, under certain circumstances, be admissible in evidence or give clues as to the existence or location of relevant facts. Or they might be useful for purposes of impeachment or corroboration.” (Emphasis added.)

Mr. Justice Jackson, in concurring, was even more explicit on this point. See supra, at 245. Pursuant to this language, the lower courts have ordered evidence to be turned over pretrial even when it came into being as a result of the adversary’s efforts in preparation for trial. A member of a defense team who witnesses an out-of-court statement of someone who later testifies at trial in a contradictory fashion becomes at that moment a witness to a relevant and admissible event, and the cases cited above would dictate disclosure of any reports he may have written about the event. Since prior statements are inadmissible hearsay until the witness testifies, there is no occasion for ordering reports of such statements produced as evidence pretrial. However, some courts have ordered witness statements produced pretrial in the likelihood that they will become impeachment evidence. Moreover, where access to witnesses or to their information is unequal, discovery of their statements is often granted solely to help a party prepare for trial regardless of any eventual evidentiary value of the out-of-court statements. See Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, 48 F. R. D., at 501.

Accordingly, it would appear that with one exception to be discussed below, the work-product notions of Hickman v. Taylor, supra, impose no restrictions on the trial judge’s ordering production of evidentiary matter at trial; that these notions apply in only a very limited way, if at all, to a party’s efforts to obtain evidence pretrial pursuant to available discovery devices; and that these notions supply only a qualified discovery immunity with respect to witness statements in any event.

II

In one of its aspects, the rule of Hickman v. Taylor, supra, has application to evidentiary requests at trial. Both the majority and the concurring opinions in Hickman v. Taylor were at pains to distinguish between production of statements written by the witness and in the possession of the lawyer, and those statements which were made orally by the witness and written down by the lawyer. Production and use of oral statements written down by the lawyer would create a substantial risk that the lawyer would have to testify. The majority said that this would “make the attorney much less an officer of the court and much more an ordinary witness.” 329 U. S., at 513. Mr. Justice Jackson, in concurring, stated:

“Every lawyer dislikes to take the witness stand and will do so only for grave reasons. This is partly because it is not his role; he is almost invariably a poor witness. But he steps out of professional character to do it. He regrets it; the profession discourages it. But the practice advocated here is one which would force him to be a witness, not as to what he has seen or done but as to other witnesses’ stories, and not because he wants to do so but in self-defense.” Id., at 517.

The lower courts, too, have frowned on any practice under which an attorney who tries a case also testifies as a witness, and trial attorneys have been permitted to testify only in certain circumstances.

The remarks of the Court in Hickman v. Taylor, supra, while made in the context of a request for pretrial discovery have application to the evidentiary use of lawyers’ memoranda of witness interviews at trial. It is unnecessary, however, to decide in this case whether the policies against putting in issue the credibility of the lawyer who will sum up to the jury outweigh the jury’s interest in obtaining all relevant information; and whether Jencks v. United States, supra, and 18 U. S. C. § 3500 are to be viewed as expressing a preference for disclosure of all facts. In this case, the creator of the memorandum was not the trial lawyer but an investigator and he was, in any event, to be called as a witness by the defense. Accordingly, I would reverse the judgment below because, quite apart from waiver, the work-product rule of Hickman v. Taylor, supra, has no application to the request at trial for evidentiary and impeachment material made in this case.

       The only other evidence introduced against respondent was a statement made at the time of arrest in which he denied that he was Robert Nobles and subsequently stated that he knew that the FBI had been looking for him.

       Counsel for the Government complained that the portion of the report produced at this time was illegible. The witness’ testimony indicates, however, that he had no difficulty reading it.

       The essence of the District Court’s order was as follows:
      “[If the investigator] is allowed to testify it would be necessary that those portions of [the] investigative report which contain the statements of the impeached witness will have to be turned over to the prosecution; nothing else in that report.
      “If he testifies in any way about impeaching statements made by either of the two witnesses, then it is the Court’s view that the government is entitled to look at his report and only those portions of that report which contain the alleged impeaching statements . . . of the witnesses.” App. 31.

       Athough the portion of the report containing the bank teller’s alleged statement previously was revealed and marked for identification, it was not introduced into evidence. When the discussion of the investigator’s testimony subsequently arose, counsel for the Government noted that he had only a limited opportunity to glance at the statement, and he then requested disclosure of that portion of the report as well as the statement purportedly made by the salesman.
      As indicated above, the bank teller did not deny having made the statement recorded in the investigator’s report. It is thus possible that the investigator’s testimony on that point would not have constituted an impeachment of the statements of that witness within the contemplation of the court’s order and would not have given rise to a duty of disclosure. Counsel did not pursue this point, however, and did not seek further clarification of the issue. Respondent does not, and in view of the failure to develop the issue at trial could not, urge this as a ground for reversal. Nor does respondent maintain that the initial disclosure of the bank teller’s statement sufficed to satisfy the court’s order. We therefore consider each of the two alleged statements in the report to be impeaching statements that would have been subject to disclosure if the investigator had testified about them.

       The discretion recognized by the Court in Jencks subsequently was circumscribed by Congress in the so-called Jencks Act, 18 U. S. C. § 3500. See generally Palermo v. United States, 360 U. S. 343 (1959).

       Rule 612 of the new Federal Rules of Evidence entitles an adverse party to inspect a writing relied on to refresh the recollection of a witness while testifying. The Rule also authorizes disclosure of writings relied on to refresh recollection before testifying if the court deems it necessary in the interests of justice. The party obtaining the writing thereafter can use it in cross-examining the witness and can introduce into evidence those portions that relate to the witness' testimony. As the Federal Rules of Evidence were not in effect at the time of respondent's trial, we have no occasion to consider them or their applicability to the situation here presented.

       “The purpose of the relevant part of the Fifth Amendment is to prevent compelled self-incrimination, not to protect private information. Testimony demanded of a witness may be very private indeed, but unless it is incriminating and protected by the Amendment or unless protected by one of the evidentiary privileges, it must be disclosed.” Maness v. Meyers, 419 U. S. 449, 473-474 (1975) (White, J., concurring in result). Moreover, the constitutional guarantee protects only against forced individual disclosure of a “testimonial or communicative nature,” Schmerber v. California, 384 U. S. 757, 761 (1966); see also United States v. Wade, 388 U. S. 218, 222 (1967); Gilbert v. California, 388 U. S. 263 (1967).

       Rule 16 (c), which establishes the Government’s reciprocal right of pretrial discovery, excepts “reports, memoranda, or other internal defense documents made by the defendant, or his attorneys or agents in connection with the investigation or defense of the case, or of statements made by the defendant, or by government or defense witnesses, or by prospective government or defense witnesses, to the defendant, his agents or attorneys.” That Rule therefore would not authorize pretrial discovery of the investigator’s report. The proposed amendments to the Federal Rules of Criminal Procedure leave this subsection substantially unchanged. See Proposed Rule 16 of Criminal Procedure, 62 F. R. D. 271, 305-306 (1974).

       Rule 16 (g) imposes a duty to notify opposing counsel or the court of the additional materials previously requested or inspected that are subject to discovery or inspection under the Rule, and it contemplates that this obligation will continue during trial. The obligation under Rule 16 (g) depends, however, on a previous request for or order of discovery. The fact that this provision may have some effect on the parties’ conduct during trial does not convert the Rule into a general limitation on the court’s inherent power to control evidentiary matters.

       We note also that the commentators who have considered Rule 16 have not suggested that it is directed to the court’s control of evidentiary questions arising at trial. See, e. g., Nakell, Criminal Discovery for the Defense and the Prosecution — the Developing Constitutional Considerations, 50 N. C. L. Rev. 437, 494-514 (1972); Rezneck, The New Federal Rules of Criminal Procedure, 54 Geo. L. J. 1276, 1279, 1282 n. 19 (1966); Note, Prosecutorial Discovery Under Proposed Rule 16, 85 Harv. L. Rev. 994 (1972).

       As the Court recognized in Hickman v. Taylor, 329 U. S., at 508, the work-product doctrine is distinct from and broader than the attorney-client privilege.

       A number of state and federal decisions have recognized the role of the work-product doctrine in the criminal law, and have applied its protections to the files of the prosecution and the accused alike. See, e. g., State v. Bowen, 104 Ariz. 138, 449 P. 2d 603, cert. denied, 396 U. S. 912 (1969); State ex rel. Polley v. Superior Ct. of Santa Cruz County, 81 Ariz. 127, 302 P. 2d 263 (1956); Peel v. State, 154 So. 2d 910 (Fla. App. 1963); In re Grand Jury Proceedings (Duffy v. United States), 473 F. 2d 840 (CA8 1973); In re Terkeltoub, 256 F. Supp. 683 (SDNY 1966).

       The sole issue in Hickman related to materials prepared by an attorney, and courts thereafter disagreed over whether the doctrine applied as well to materials prepared on his behalf. See Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, 48 F. R. D. 487, 501 (1970); 4 J. Moore, Federal Practice ¶ 26.63 [8] (2d ed. 1974). Necessarily, it must. This view is reflected in the Federal Rules of Civil Procedure, see Rule 26 (b) (3), and in Rule 16 of the Criminal Rules as well, see Rules 16 (b) and (c); cf. E. Cleary, McCormick on Evidence 208 (2d ed. 1972).

       What constitutes a waiver with respect to work-product materials depends, of course, upon the circumstances. Counsel necessarily makes use throughout trial of the notes, documents, and other internal materials prepared to present adequately his client’s ease, and often relies on them in examining witnesses. When so used, there normally is no waiver. But where, as here, counsel attempts to make a testimonial use of these materials the normal rules of evidence come into play with respect to cross-examination and production of documents.

       We cannot accept respondent’s contention that the disclosure order violated his Sixth Amendment right to effective assistance of counsel. This claim is predicated on the assumption that disclosure of a defense investigator’s notes in this and similar cases will compromise counsel’s ability to investigate and prepare the defense case thoroughly. Respondent maintains that even the limited disclosure required in this case will impair the relationship of trust and confidence between client and attorney and will inhibit other members of the “defense team” from gathering information essential to the effective preparation of the case. See American Bar Association Project on Standards for Criminal Justice, The Defense Function §3.1 (a) (App. Draft 1971). The short answer is that the disclosure order resulted from respondent’s voluntary election to make testimonial use of his investigator’s report. Moreover, apart from this waiver, we think that the concern voiced by respondent fails to recognize the limited and conditional nature of the court’s order.

       Respondent additionally argues that certain statements by the prosecution and the District Court’s exclusion of purported expert testimony justify reversal of the verdict, and that the Court of Appeals’ decision should be affirmed on those grounds. The Court of Appeals rejected respondent’s challenge to the exclusion of the testimoney of the proffered expert, 501 F. 2d, at 150-151. Respondent did not present this issue or the question involving the challenged prosecutorial statements to this Court in a cross-petition for certiorari. Without questioning our jurisdiction to consider these alternative grounds for affirmance of the decision below, cf. Langnes v. Green, 282 U. S. 531, 538 (1931); Dandridge v. Williams, 397 U. S. 471, 475-476, n. 6 (1970); see generally Stern, When to Cross-Appeal or Cross-Petition — Certainty or Confusion?, 87 Harv. L. Rev. 763 (1974), we do not consider these contentions worthy of consideration. Each involves an issue that is committed to the trial court’s discretion. In the absence of a strong suggestion of an abuse of that discretion or an indication that the issues are of sufficient general importance to justify the grant of certiorari we decline to entertain them.

       Under criminal discovery rules the time factor is not as great as might otherwise appear. Federal Rule Crim. Proc. 16 permits discovery through the time of trial; and under Fed. Rule Crim. Proc. 17 (c), evidentiary matter may be obtained pursuant to subpoena in advance of trial in the discretion of the trial judge.

       Prior to the Federal Rules, requests for witness statements were granted or denied on the basis of whether they were evidence and nonprivileged. In the main, production was denied, either because witness statements were not evidence (they are inadmissible hearsay until and unless the witness testifies); because a party is not entitled to advance knowledge of his adversary’s case; or because the statements were made by the client or his agent to his attorney and thus covered by the attorney-client- privilege. 4 J. Moore, Federal Practice ¶ 26.63 [3] (2d ed. 1974), and cases cited therein. The cases did not hold that witness statements were generally privileged, if they were evidentiary, and had no cause to decide whether a work-product notion should protect them from discovery, since they were nondiscoverable anyway under applicable discovery rules. But see Walker v. Struthers, 273 Ill. 387, 112 N. E. 961 (1916).

       Mr. Justice Jackson’s concurrence is even more express on this point. It states: “[T]he question is simply whether such a demand is authorized by the rules relating to various aspects of ‘discovery.’ ” 329 U. S., at 514.

       Mr. Justice Jackson also emphasized that the witness statements involved in Hickman v. Taylor were neither evidence nor privileged. Id., at 516. Indeed, most of the material described by the Court as falling under the work-product umbrella does not qualify as evidence. A lawyer’s mental impressions are almost never evidence and out-of-court statements of witnesses are generally inadmissible hearsay. Such statements become evidence only when the witness testifies at trial, and are then usually impeachment evidence only. This case, of course, involves a situation in which the relevant witness was to testify and thus presents the question — not involved in Hickman v. Taylor — whether prior statements should be disclosed under the trial judge’s power over evidentiary matters at trial.

       In n. 13 of its opinion, the Court cites Fed. Rule Crim. Proc. 16 (c), as containing the work-product rule. In n. 10, the Court correctly notes that Rule 16 (c) is not “directed to the court’s control of evidentiary questions arising at trial.” It seems to me that this supplies a better ground for the Court’s decision than “waiver.”

       The majority does cite one case, In re Terkeltoub, 256 F. Supp. 683 (SDNY 1966), in which the court referred to the work-product doctrine in preventing the Government from inquiring of a lawyer before the grand jury whether he had participated in suborning perjury of a prospective witness while preparing a criminal case for trial. In any event, a grand jury investigation is in some respects similar to pretrial discovery. Compare In re Grand Jury Proceedings (Duffy v. United States), 473 F. 2d 840 (CA8 1973), with Schwimmer v. United States, 232 F. 2d 855 (CA8), cert. denied, 352 U. S. 833 (1956). The proper scope of inquiry is as broad, and it can be used as a way of preparing for the later criminal trial. There is for example a split of authority on whether the work-product rule applies to IRS tax investigations. Compare United States v. McKay, 372 F. 2d 174 (CA5 1967), with United States v. Brown, 478 F. 2d 1038 (CA7 1973).

         Shaw v. Wuttke, 28 Wis. 2d 448, 454-456, 137 N. W. 2d 649, 652-653 (1965); State ex rel. State Highway Comm’n v. Steinkraus, 76 N. M. 617, 620-621, 417 P. 2d 431, 432-433 (1966); E. I. duPont de Nemours & Co. v. Phillips Petroleum Co., 24 F. R. D. 416 (Del. 1959); United States v. Matles, 154 F. Supp. 574 (EDNY 1957) ; United States v. Sun Oil Co., 16 F. R. D. 533 (ED Pa. 1954) ; United States v. Gates, 35 F. R. D. 524 (Colo. 1964).

       The Court in Jencks quoted the language of Mr. Chief Justice Marshall in United States v. Burr, 25 F. Cas. 187, 191 (Va. 1807):
      “ 'Now, if a paper be in possession of the opposite party, what statement of its contents or applicability can be expected from the person who claims its production, he not precisely knowing its contents?’ ” 353 U. S., at 668 n. 12.

        Cummings v. Bell Telephone Co. of Pennsylvania, 47 F. R. D. 373 (ED Pa. 1968); Marks v. Gas Service Co., 168 F. Supp. 487 (WD Mo. 1958); Maginnis v. Westinghouse Electric Corp., 207 F. Supp. 739 (ED La. 1962); Julius Hyman & Co. v. American Motorists Ins. Co., 17 F. R. D. 386 (Colo. 1955); Parrett v. Ford Motor Co., 47 F. R. D. 22 (WD Mo. 1968); Scuderi v. Boston Ins. Co., 34 F. R. D. 463, 468 (Del. 1964) (each involving a situation in which a member of a litigation team witnessed an event or scene in the course of preparing a case for trial and the court ordered disclosure of his report of the event); Bourget v. Government Employees Ins. Co., 48 F. R. D. 29 (Conn. 1969); McCullough Tool Co. v. Pan Geo Atlas Corp., 40 F. R. D. 490 (SD Tex. 1966); O’Boyle v. Life Ins. Co. of North America, 299 F. Supp. 704 (WD Mo. 1969). Cf. LaRocca v. State Farm Mutual Automobile Ins. Co., 47 F. R. D. 278 (WD Pa. 1969), and Kennedy v. Senyo, 52 F. R. D. 34 (WD Pa. 1971) (in each of which the preparation for trial was the subject of the suit); see also Natta v. Hogan, 392 F. 2d 686, 693 (CA10 1968); F. James, Civil Procedure 211 (1965).

       The holding in Jencks v. United States, 353 U. S. 657 (1957), would put to rest any claim that such prior statement would be disclosable only if the adversary established its evidentiary value ahead of time by specific proof that it was inconsistent.

        Tetter v. Lovett, 44 F. R. D. 465 (WD Tex. 1968); McDonald v. Prowdley, 38 F. R. D. 1 (WD Mich. 1965); Tannenbaum v. Walker, 16 F. R. D. 570 (ED Pa. 1954); Fulton v. Swift, 43 F. R. D. 166 (Mont. 1967); Republic Gear Co. v. Borg-Warner Corp., 381 F. 2d 551, 557-558 (CA2 1967) (in camera inspection). Cf. Goosman v. A. Duie Pyle, Inc., 320 F. 2d 45 (CA4 1963). For cases contra see 4 J. Moore, Federal Practice ¶ 26.64 [3] n. 14 (2d ed. 1974).

       The majority states:
      “Moreover, the concerns reflected in the work-product doctrine do not disappear once trial has begun. Disclosure of an attorney’s

        efforts at trial, as surely as disclosure during pretrial discovery, could disrupt the orderly development and presentation of his case. We need not, however, undertake here to delineate the scope of the doctrine at trial, for in this instance it is clear that the defense waived such right as may have existed to invoke its protections.” Ante, at 239.
      As noted above, the important question is not when the document in issue is created or even when it is to be produced. The important question is whether the document is sought for evidentiary or impeachment purposes or whether it is sought for preparation purposes only. Of course, a party should not be able to discover his opponent’s legal memoranda or statements of witnesses not called whether his request is at trial or before trial. Insofar as such a request is made under the applicable discovery rules, it is within the rule of Hickman v. Taylor even though made at trial. Insofar as the request seeks to invoke the trial judge’s discretion over evidentiary matters at trial, the rule of Hickman v. Taylor is unnecessary, since no one could ever suggest that legal memoranda or hearsay statements are evidence. If this is all the majority means by the above-quoted language, I agree.

       If the witness does not acknowledge making an inconsistent statement to the lawyer — even though the lawyer recorded it — the cross-examiner may not offer the document in evidence without at least calling the lawyer as a witness to authenticate the document and Otherwise testify to the prior statement.

        United States v. Porter, 139 U. S. App. D. C. 19, 429 F. 2d 203 (1970); United States v. Fiorillo, 376 F. 2d 180 (CA2 1967) ; Gajewski v. United States, 321 F. 2d 261 (CA8 1963), cert. den., 375 U. S. 968 (1964); United States v. Newman, 476 F. 2d 733 (CA3 1973); Travelers Ins. Co. v. Dykes, 395 F. 2d 747 (CA5 1968); United States v. Alu, 246 F. 2d 29 (CA2 1957); United States v. Chiarella, 184 F. 2d 903, modified on rehearing, 187 F. 2d 12 (CA2 1950), vacated as to one petitioner, 341 U. S. 946, cert, denied as to other petitioner sub nom. Stancin v. United States, 341 U. S. 956 (1951); United States v. Clancy, 276 F. 2d 617 (CA7 1960), rev’d on other grounds, 365 U. S. 312 (1961).

       The cases have held records of witness statements made by prosecutors to be disclosable under 18 U. S. C. § 3500, United States v. Hilbrich, 341 F. 2d 555 (CA7), cert. den., 381 U. S. 941, reh. den., 382 U. S. 874 (1965), and 384 U. S. 1028 (1966); United States v. Aviles, 315 F. 2d 186 (CA2 1963); Saunders v. United States, 114 U. S. App. D. C. 345, 316 F. 2d 346 (1963); United States v. Smaldone, 484 F. 2d 311 (CA10 1973), cert. den., 415 U. S. 915 (1974). Cf. Canaday v. United States, 354 F. 2d 849 (CA8 1966). In State v. Bowen, 104 Ariz. 138, 449 P. 2d 603 (1969), the court reached a contrary result under state law. .

       A conflict arose among lower federal courts over the question whether the work product of members of a litigation team other than the lawyer was protected from discovery by the rule of Hickman v. Taylor, supra. Ghent, Development, Since Hickman v. Taylor, of Attorney’s “Work Product” Doctrine, 35 A. L. R. 3d 438-440 (§§ 7 [a] and [b]) and 453-455 (§§ 15 [a] and [b]) (1971); Proposed Amendments to the Federal Rules of Civil Procedure Relating to Discovery, 48 F. R. D. 487, 501-502 (1970). With respect to discovery in civil cases under Fed. Rule Civ. Proc. 26, the conflict was resolved in the 1970 amendments by affording protection to documents by a party’s “representative,” whether a lawyer or not. Where the purpose of the rule protecting the work product is to remove the incentive a party might otherwise have to rely solely on his opponent’s preparation, it is sensible to treat preparation by an attorney and an investigator alike. However, the policy against lawyers testifying applies only to the lawyer who tries the case.