I concur in the result but see no justification for the Court’s ranging far afield of the necessities of the‘case in an opinion essaying obiter a general interpretation of the so-called “Jencks Act,” 18 U. S. C. (Supp. V) § 3500. Many more concrete cases must be adjudicated in the District Courts before we shall be familiar with all the problems created by the statute.
We of this Court, removed as we are from the tournament of trials, must be careful to guard against promulgating general pronouncements which prevent the trial judges from exercising their traditional responsibility. The Court’s opinion well observes that the hope for a fair administration of the statute rests in the final analysis with its responsible application in the federal trial courts. *361This responsibility of the federal trial judge, it goes without saying, is not to be delegated to the prosecutor. Questions of production of statements are not to be solved through one party’s determination that interview reports fall without the statute and hence that they are not to be produced to defense counsel or to the trial judge for his determination as to their coverage. I am confident that federal trial judges will devise procedural methods whereby their responsibility is not abdicated in favor of the unilateral determination of the prosecuting arm of the Government.
Congress had no thought to invade the traditional discretion of trial judges in evidentiary matters beyond ■cheeking extravagant interpretations of our decision in Jencks v. United States, 353 U. S. 657, which were said to have been made by some lower courts. Indeed Congress took particular pains to make it clear that the legislation “reaffirms” that decision’s holding that a defendant on trial in a criminal prosecution is entitled to relevant and competent reports and statements in possession of the Government touching the events and activities as to which a government witness has testified at the trial. S. Rep. No. 981, 85th Cong., 1st Sess., p. 3. And see H. R. Rep. No. 700, 85th Cong., 1st Sess., pp. 3, 4. I see. no necessity in the circumstances of this case which calls for a decision whether § 3500 is the sole vehicle whereby production of prior statements of government witnesses to government agents may be made to the defense. Certainly nothing in the statute or its legislative history , justifies our stripping the trial judge of all discretion to make nonqualifying reports available in proper cases. Take the case of a memorandum of a government' agent simply stating that a person interrogated for several hours as to his knowledge of the defendant’s alleged criminal transactions, denied any knowledge of *362them. Then suppose that person is called as a government witness at the trial and testifies in great detail as to the defendant’s alleged criminal conduct. The agent’s summary would not bé a detailed account of the several hours’ interrogation of the witness by the Government, and would riot meet the definition of statement in subsection (e) of the statute; but it is inconceivable that.Congress intended, by the Jencks statute, to strip the-trial judge of discretion to order such a summary produced to the defense. Even the-Government, in oral argument, conceded that the statute did not strip the district judges of discretion to order production of such a staternent under some circumstances.1 There is an obvious constitutional problem in an interpretation that the statute restrains the trial judge from ordering such a statement produced. Less substantial restrictions than this of the common-law rights of confrontation of one’s accusers have been struck down by this Court under the Sixth Amendment. See Kirby v. United States, 174 U. S. 47. And in such circumstances, there becomes pertinent the cominand of that Amendment that criminal defendants have compulsory process to obtain witnesses for their defense. See United States v. Schneiderman, 106 F. Supp. 731, 738. It is true that our holding in Jencks was not put ori constitutional grounds, for it did not have to be; but it would be idle to say that the commands of the Constitution were not close *363to the surface of the decision; indeed, the Congress recognized its constitutional overtones in the debates on the statute.2
No express language of the statute, forbids the production, after a witness has testified, of any statement outside the coverage of the definition in subsection (e), and certainly the legislative history is no adequate support for reading an absolute prohibition into it. It is true that until the Conference Report the bill contained a provision making it in terms exclusive; but this language was deleted in Conference. I should think this change would support' an inference-negating any absolute exclusivity. To Be sure, the change was not explained in the hurried floor discussions which followed the agreement in Conference, in the hectic closing days of the session,3 but the absence of an explanation for the change. can argue in favor of it's being taken at face value. Certainly this Court should not decide' the contrary against the backdrop of á serious question of .potential invasion of Sixth Amendment rights. This is not to ignore the obvious intent of Congress that the statute provide the priifiary tests of what the Govern- . ment should produce; it is only to recognize that it is not inconsistent with achievement of the statute’s aim to require the production of statements outside the scope of the statute where the fair administration of criminal justice so demánds. And certainly .the statute cannot be sáid to be exclusive where the Constitution demands production. Of course, the trial judge may fashion procedural .safeguards as to those producible statements lying outside the statute’s purview, perhaps by analogy to the statutory procedures for the excision of irrelevant matter. *364It is sufficient to say in this case that the summary in controversy does not appear to fall within the category of statements, outside the definition in sübsection (e), as to which the trial judge’s discretion might be exercised.4 Decision need turn on no , broader ground. Cf. Lee v. Madigan, 358 U. S. 228, 230-231. What was stated in the agent’s summary was already known in every important detail to the defense from the transcript of the interview of July 16 and the affidavit of August 23.
The summary in this case does not present the question whether the statute requires the production óf a statement which records part of, but no.t the entire interview between the witness and the government agent. This is a problem which also should be left to the development of the interpretive case law, and in fact I do not read the Court’s opinion as essaying a definitive answer. It is a problem I suppose which would be raised by a stenographic, electrical or mechanical transcript of only part of an interview. There is nothing in the legislative history of the statute to indicate that a stenographic transcript of a 10-minute segment of an hour’s interview would not be producible under the statute. If such a transcript would be producible, how distinguish a substantially faithful reproduction, made by the interviewer from his notes or from memory, of any part of the interview? Since, as the Court’s opinion concedes, statements made up from -interviewer’s notes5 are not per se unproducible, one would *365suppose that a summary, part of which gave a substantial verbatim account of part of the interview, would, as to that part, be producible under the statute. Certainly a statement can be most useful for impeachment even though it does not exhaust all that was said upon the occasion. We must not forget that when confronted with his prior statement upon cross-examination the witness always has the opportunity to offer an explanation. The statute is to be given a reasonable construction, and the courts must not lose sight of the fact that the statute regulates production of material for possible use in cross-examination, and does not regulate admissibility into evidence — as the Court properly observes. Here too, the constitutional question close to the surface of our holding in Jencks must be borne in mind.
I repeat that Congress made crystal clear its purpose only to check extravagant interpretations of Jencks in the lower courts while reaffirming the basic holding that a defendant on trial should be entitled to statements helpful in the cross-examination of government witnesses who testify against him. Although it is plain that some restrictions on production have been introduced, it would do violence to the understanding on which Congress, working at high speed under the pressures of the end of a session, passed the statute, if we were to sanction applications of it exalting and exaggerating its restrictions, in disregard of the congressional aim of reaffirming the basic Jencks principle of assuring the defendant a fair opportunity to make his defense. Examination of the papers so sedulously kept from defendant in this case and companion cases does not indicate any governmental interest, outside of the prosecution’s interest in .conviction, that is served by nondisclosure, and one may wonder whether this is not usually so. There inheres in an overrigid interpretation and application of the statute the hazard *366of encouraging a practice of government agents’ taking statements in a fashion calculated to insulate them from production. I am confident that the District Courts will bear all these factors in mind in devising practical solutions to the problems of production in the many areas which cannot fairly be said to be determined by the affirmance of the-judgment in this'case.
In response to a case-put similar to the one given here, government counsel suggested that the primary remedy of the defendant was to call the interviewer. ' Of course this would only be adequate if the defense had some reason to believe that an interview of such character had taken place and if the witness recalled the interviewer’s name. Pressed further as to cases of the nonavailability of the interviewer, government counsel made it clear that “I would certainly not want to carry the burden of saying that in some extraordinary situation where there was no other possible way of getting hold of it- [the summary] that there might not be exceptions read into the statute — what I am talking about now is the normal, ordinary case.”
See H. R. Rep. No. 700, 85th Cong., 1st Sess., p. 4; S. Rep. No. 981, 85th Cong., 1st Sess., p. 3; 103 Cong. Rec. 15928, 15933, 16489.
Copies of a statement analyzing the conference version were not ‘even available to_the Senate due to .the press of time. Sec 103 Cong. Rec. 16488-16489.
Of course if the memorandum had been one falling within the statute, I need hardly add that the judge would have had no discretion to refuse to order its production to the defense, in the light of. the statute’s affirmative command.
I might say in passing that the Court’s emphasis on interviewer’s notes as a basis of producible interview records seems wholly devoid of any real support in the text of the statute or in the legislative materials cited by the Court.