Download In Your Presence By Paul Wilbur
Dibe Naro
The appellant alleges misconduct on the part of the court and counsel in connection with the introduction of photostatic copies of the documents which had been taken from the appellant at the time of his arrest and which had been subsequently returned to him. During the course of the colloquy between court and counsel, the United States attorney sought to meet this objection by offering to present the originals if they were produced by the appellant. This offer was germane in view of the objection of the appellant that the evidence offered by the government was not the best evidence. If the appellant desired to produce the better evidence and substitute it for that offered by the government, he would no doubt have had the right to do so. He could not be compelled to do so. The court did not undertake to compel the production of the documents, although the matter was discussed in the presence of the jury and it was intimated by the court that the appellant could be compelled to produce the documents in question. To meet appellant's contention that he had been prejudiced by the remarks of the court, the court instructed the jury as follows: "I might state that in the production of evidence here I think it is possible, although I have not reviewed the record, that the court indicated that it was incumbent upon the defendant to produce certain documents which had been returned to him if application was made by the government for their production. That is the civil law but not the criminal law. If I did so state in the record I erred. I want you to understand that the defendant is not compelled to produce anything against himself, even if demand is made upon him in a criminal action. In your consideration bear that in mind, that the defendant is not required or expected, nor can you assume anything against him because he has not produced, if he has them there is nothing to establish that he has them at the present time any documents which might have been desired by the government to be produced, if they did so desire to have them produced." In view of the objection of the appellant and the implied admission that the photostatic copies of the papers in the possession of the appellant were correct reproductions of the originals, the appellant was not prejudiced by the remarks of the court, particularly in view of the instruction on that subject. Appellant cites the case of McKnight v. U. S. (C. C. A.) 115 F. 972, in support of his assignment of misconduct. That case has no application to the situation at bar, for here the document in question had been properly obtained by search of the person of the appellant at the time of his arrest. Appellant's unfounded objection to the copy provoked the discussion.