dissenting in part and concurring in the result in part.
What is this case? In the course of a prosecution for violation of the Federal Bank Robbery Act, 18 U. S. C. § 2113, Dominic Staula, a government witness, identified defendant Lester as one of three men whom he had observed committing the alleged offense. Upon cross-examination, he disclosed that, on one occasion at local police headquarters, he had been interviewed by at least two FBI agents. He stated that he did not sign any statements, but only signed “a piece of paper saying I was in the bank.” On the basis of this testimony the defense requested “the statement of this man” under the Jencks Act, 18 U. S. C. § 3500, which requires that the court order the Government to produce “any statement ... of the witness in the possession of the United *100States which relates to the subject matter as to which the witness has testified.” The trial judge denied this request on the ground that the defense had “laid no foundation for it” since “this man said nothing was ever read back to him.” No exception was taken to this ruling. In the continuing cross-examination that followed, Staula changed his testimony by recalling that the agents had written down what he had told them, that “it” was read back to him, and that he had told the agents “it” was “essentially what [he] . . . had just related to them.” The judge then held sua sponte that a foundation had been laid for an order to the Government to produce the described document, and ordered the document produced. A colloquy at the bench followed, in the course of which Staula explained to the judge that since his earlier testimony he had recollected what had taken place; that he “believed” or was “pretty sure” that “it” had been read back to him; that what was read back was an accurate statement of what he had told the agents; that he thought they gave “it” back to him to read over and that he had to sign it, although he was not “sure.” Government counsel stated at the bench that the only document in their possession was a “summary of the result of the interview” which represented the FBI agent's “interpretation of what happened.” The judge then asked whether the Government possessed “any statement that was copied by an FBI Agent which in any way would reflect a statement that this witness made and which he substantially adopted as the statement,” to which government counsel replied “No, your Honor, we don’t.” A moment later the judge again asked, “Has the United States in its possession any notes that were taken down by the FBI Agent at the time this witness was interviewed?” Government counsel answered “I do not have them in my possession and I do not know whether they ever existed.” The judge then asked for and received the FBI agent’s report referred *101to by the United States Attorney, and the case was adjourned for the day.
The following morning during a conference held in the judge’s chambers the Government again asserted that the agent’s report was not a copy of the original notes, and that the notes were no longer in existence. A long discussion ensued concerning the producibility of the agent’s report. Defense counsel suggested that the FBI agent (Toomey) be called into chambers “to explain where he got the document,” and to “say what he has done with the original writing.” This the judge denied, but suggested that the defendants were free to subpoena the agent, or, more simply, could ask the Government to have the agent made available for examination. The judge then proposed to ask Staula, out of the presence of the jury, whether the report was a substantially verbatim recital of what he had told the agent, and, if the answer were affirmative, the report would be given to defendants for impeachment purposes. Both sides opposed this move. The Government argued that in any event the report had not been “recorded contemporaneously with the making of such oral statement,” and defendants’ counsel objected because the impeachment value of the report would be negated by having the witness see the document and himself decide whether it conformed to what he had told the FBI. But Staula was shown the document. He denied that it was a “substantially verbatim recital of what [he] . . . told Agent Toomey,” and the judge thereupon denied the defense access to the document for purposes of impeachment. Thereupon defendants moved that, in accordance with the Act, Staula’s entire testimony be stricken because the Government had failed to produce “the original document.” This motion was denied.
The case presents two entirely separate questions under the Jencks Act, and they should be kept apart. First, what *102are the procedural requirements, under the Jencks statute, when counsel for the United States announces that he cannot produce documents for which a foundation has been laid because he does not possess them and does not know of their existence? Secondly, was the FBI agent’s available report producible under the Act?
I.
Title 18 U. S. C. § 3500 requires the trial judge, upon a motion by the defendant, to “order the United States to produce any statement ... of the witness in the possession of the United States” which is relevant to the direct testimony of the government witness. Nothing in the legislative history of the Act remotely suggests that Congress’ intent was to require the Government, with penalizing consequences, to preserve all records and notes taken during the countless interviews that are connected with criminal investigation by the various branches of the Government. The legislation narrowed the application of our decision in Jencks v. United States, 353 U. S. 657, as construed by some of the lower courts, partly by having the relevancy of the material determined by the district judge prior to its production. S. Rep. No. 981, 85th Cong., 1st Sess., p. 2.
Petitioners’ contention that the words “in the possession of” must be interpreted as meaning “possession at any prior or present time” must be rejected. Congress surely did not intend to initiate a game of chance whereby the admission of a witness’ testimony is made to depend upon a file clerk’s accuracy or care. Senator O’Mahoney, the sponsor of the bill, in illustrating that his measure approved the essential basis of the Jencks case, interpreted Jencks to apply only where the Government “had at the same time in its files a statement” pertinent to a witness’ testimony. 103 Cong. Rec. 10120. See also S. Rep. No. *103981, 85th Cong., 1st Sess., p. 5; H. R. Rep. No. 700, 85th Cong., 1st Sess., p. 5.1
Here government counsel told the court that he did not possess and did not know the whereabouts of the documents which Staula had described. The Court today holds that it fell upon the district judge to conduct a further investigation as to the disposition of the documents, whereby it becomes his duty to call and question the FBI agent who signed the subsequent summary. Defendants did not question the truth or accuracy of the responses of the United States Attorney as to the nonexistence of the original notes. Defendants were represented by two competent lawyers who were alert to protect their clients’ interest through all available trial procedures and tactics. It surely is not the duty of a district judge to investigate a response by one who is an officer of the court as well as of the United States on the assumption that he has intentionally or irresponsibly violated his responsibility to the court and the Government in conducting the Government’s case in a manner consistent with basic legal ethics and professional care.
How does the court’s duty regarding a claim by defense under the Jencks statute differ from any other claim for the production of a document? We are told that because Agent Toomey was readily available, it devolved on the judge instead of on the defendants to seek whatever light could be thrown on the matter. Is it now the duty of the district judge to do all that a competent defense counsel would do, or would choose, as a matter of trial judgment, not to do? The procedure now suggested places the judge in the position of a voluntary defender for defendants *104already adequately represented. This seems only the more questionable since it may well be that counsel here were satisfied that the documents had been disposed of in a bona fide manner. It is not the duty of this Court to invent hypothetical situations in which independent action by the district judge might have revealed unexpected facts. There was no suggestion, not a hint— either before the trial court, or below, or upon argument here — that the Government’s representation of the nonexistence of the documents was not bona fide, was a piece of chicane and as such a fraud upon the court bringing into action the court’s protection of its dignity and honor, or a manifestation of professional inadequacy as to call for the court’s safeguarding action.
II.
The other issue presented by the case is the produci-bility of the FBI agent’s report which had been put into possession of the court. Subsection (e) of the Jencks Act thus defines the papers in the Government’s possession that are subject to production:
“(1) a written statement made by said witness and signed or otherwise adopted or approved by him; or
“(2) a stenographic, mechanical, electrical, or other recording, or a transcription thereof, which is a substantially verbatim recital of an oral statement made by said witness to an agent of the Government and recorded contemporaneously with the making of such oral statement.”
The plain differentiation between the two clauses is that the former relates to statements written by a witness, while the latter encompasses his oral statements recorded and transcribed by another. As to the statements that *105the witness had himself set down on paper, Congress desired that his signature or some other form of approval be shown to assure authenticity. The required approval would also quiet any doubts that the witness had an adequate opportunity to scrutinize for verification the document which he had prepared. These are appropriate safeguards for the use of these documents as a basis for impeaching the witness’ testimony on the stand. As to oral statements, the statute prescribes that their content be “a substantially verbatim recital” of the witness’ words, recorded contemporaneously. “Clearly this provision allows the production of mechanical or stenographic recordings of oral statements, even though later transcribed.” Palermo v. United States, 360 U. S. 343, 351-352. Producibility, for purpose of impeachment, of a statement drawn up in the third person by an agent requires that the whole oral statement be contemporaneously recorded. Under this standard, a summarization by an agent of selective portions of testimony by the witness would not fall within the scope of the Act. “[B]eyond mechanical or stenographic statements ... a very restrictive standard is to be applied” in defining what is a “statement” under the statutory language. Palermo v. United States, supra, at 360. Under subsection (2), it makes no difference whether these agent summaries are signed or approved by the witness; “the legislation was designed to eliminate the danger of distortion and misrepresentation inherent in a report which merely selects portions, albeit accurately, from a lengthy oral recital.” Palermo v. United States, supra, at 352. As the bill originally came out of the House Judiciary Committee, 103 Cong. Rec. 16125, such summaries when approved by the witness would have been subject to production. H. R. Rep. No. 700, 85th Cong., 1st Sess., p. 6. However, the subsequent revision of the bill as finally enacted makes *106clear that those statements of a witness given orally to the Government must meet the standard of “substantially verbatim” in order to be produced for purposes of impeachment.2 See Appendix B, Palermo v. United States, supra, at 358-360.
In Palermo, we approved of the district judge’s holding proceedings in camera to determine whether questionable' documents constituted statutory “statements.” 360 U. S., at 354. It needed no explicitness to establish that the “substantially verbatim” test was to be made by extrinsic proof, not by asking the witness himself whether the document in question substantially conformed to what he had told the federal agents. We agree with the Court that the procedure in which the trial judge indulged was erroneous. The witness might deny the accuracy of the document in order to avoid impeachment; even if produced, the document loses much of its potentiality for impeachment if the witness has already examined its contents.
But the trial judge’s error in submitting, out of hearing of the jury, the Interview Report for Staula’s determination of its accuracy would not warrant reversal if that report proves itself, on its face, not to be a statutory “statement.” In Palermo, the document was a 600-word summary of a 3%-hour conference, which we held was clearly not a virtually verbatim transcript. 360 U. S., at 355, n. 12. The Interview Report here comes to slightly over 500 words. But the record is silent as to the duration of the interview. Nor does it disclose *107whether the interview was contemporaneously recorded,3 or how any such recording was transcribed. However doubtful it may seem, it may be the fact that the interview was very brief, not more than a few minutes, and that the conversation as an entirety was faithfully recorded and constituted an accurate account of all that transpired.
It is the responsibility of counsel for defendants, as has been elucidated, to pursue ascertainment of the correctness of the Government’s claim that documents which are demandable for production under the Jencks Act are no longer in existence, and for no reprehensible reason chargeable to the Government. That is an issue like any other issue of appropriate evidentiary demand. It is not for the court to question that the foundation for production — here, the existence of a document — is wanting, if counsel for defendants do not question the Government’s explanation for non-production. A very different issue is presented in determining the legal significance of a document like the FBI report under the Jencks Act, which is produced for the confidential inspection of the court and not shown to the defense. Here the responsibility for resolving the issue rests with the court, and it is the court that must pursue appropriate means for ascertaining the facts relevant to judgment.
The district judge should and easily could have probed these matters, vital to ascertainment of the Jencks Act *108quality of the report, by interrogating counsel, or, as the Court suggests, examining Agent Toomey on the circumstances of the interview.4 Since on this record we cannot say that the report was patently not producible under the Act, we have no recourse but to remand the matter to the District Court for determination whether the report meets the requirements of subsection (e)(2).
The Court’s opinion implies that the defendant is entitled to statements which the Government does not now possess, ante, p. 98. The Act plainly speaks only to a “statement ... of the witness in the possession of the United States.”
Insofar as the Court’s opinion suggests that, had Staula signed the Interview Report, it would conclusively have been producible, we disagree. Under the statutory language, it still would have been necessary to find that the report was “a substantially verbatim recital” of that which Staula told the agents. Section 3500 (e) (1) is inapplicable.
Aside from Staula's conflicting testimony that the agent took notes.
During the proceedings in chambers, the Government repeatedly asserted that the report was not in existence at the time Staula was interviewed. Assuming this to be true, it is irrelevant; the question is whether there was a contemporaneous recording from which the transcription was later made. See Palermo v. United States, supra, at 351-352.
Calling Agent Toomey for this purpose is a very different thing from requiring the judge to call him in order to controvert the Government’s assertion that no other notes or documents were in their possession. That was for the defense to deal with.