Stanford Law Review

A Tale of Two Typewriters Author(s): Herbert L. Packer Source: Stanford Law Review, Vol. 10, No. 3 (May, 1958), pp. 409-440 Published by: Stanford Law Review Stable URL: http://www.jstor.org/stable/1226822 Accessed: 20/01/2010 23:22

Your use of the JSTOR archive indicates your acceptance of JSTOR's Terms and Conditions of Use, available at http://www.jstor.org/page/info/about/policies/terms.jsp. JSTOR's Terms and Conditions of Use provides, in part, that unless you have obtained prior permission, you may not download an entire issue of a journal or multiple copies of articles, and you may use content in the JSTOR archive only for your personal, non-commercial use.

Please contact the publisher regarding any further use of this work. Publisher contact information may be obtained at http://www.jstor.org/action/showPublisher?publisherCode=slr.

Each copy of any part of a JSTOR transmission must contain the same copyright notice that appears on the screen or printed page of such transmission.

JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected].

Stanford Law Review is collaborating with JSTOR to digitize, preserve and extend access to Stanford Law Review.

http://www.jstor.org A Tale of Two Typewriters* HERBERTL. PACKERt

"The trial . . . is not an investigative,but a demonstrativepro- ceeding."' It is up to the partiesto supply the informationon which a verdictrests. What comesout dependson what goes in. The truthof this view of the Anglo-Americanjudicial process is nowheremore clearly exemplified than in whata Britishobserver has called "the strangecase" of Alger Hiss.2 After two trials,a juryconvicted Hiss of perjuringhimself when he sworeto a grand jury that he had never passedgovernment documents to Whit- taker Chambers.Stripped of its baroqueornamentation, the evi- dencewhich the jurymust have believed came down to two things: Chambers'assertion that Hiss had passeddocuments to him, and the existenceof papersconcededly prepared for espionagepurposes and concededlytyped on a typewriterowned by Hiss. Everything else in the case-the prothonotarywarbler which Hiss may or may not havetold Chambershe saw, the bedroomat 3oth Streetwhere Chambersmay or may not have slept, the $400bank withdrawal thatmay or maynot havebeen given to Chambersby Hiss,the per- formanceof "She Stoops to Conquer"that the Hisses and the Chambersesmay or may not have attendedtogether, the red rug that may or may not have been a gift to Hiss from his grateful friendsin Russia-all the myriaddetails which made for suchfasci- nated speculationat the time and which have not, even now, lost their power to prod the imagination,all of them were, finally, peripheral,if not irrelevant.The businessof counting inconsis- tencies-so manyfor Hiss, so many for Chambers-became,even at the time of the trials,little morethan a sideshowin the shadow of the centralquestion: how could documentswhich were surely intendedto be used for espionagehave been typed on the type- writerof an innocentman? One might disbelieveChambers, but * The means for reflectingon this and related problems were supplied by a grant from The Fund for The Republic, Inc. I am grateful also to several colleagues and friends who read and criticized earlier drafts of the manuscript: to Ralph S. Brown, Jr., Warren M. Christopher, Phil C. Neal, George E. Osborne, Harold Shepherd, Carl B. Spaeth, and, particularlyso, to John R. McDonough, Jr. They, of course, bear no responsibilityfor the validity of the analysis or for the views expressed. t B.A. 1944, LL.B. 1949, Yale University; Associate Professor of Law, Stanford Uni- versity. 1. MORGAN, SOME PROBLEMS OF PROOF UNDER THE ANGLO-AMERICAN SYSTEM OF LITIGATION71-72 (1956). 2. JOWITT,THE STRANGECASE OF ALGER HISS (1953). 409 410 STANFORD LAW REVIEW [Vol. Io: Page 409 how could one disbelieveChambers plus the typewrittendocu- ments? It was the defense'sfailure to advancean explanationthat sent AlgerHiss to the penitentiary.It was,in the end,a failureof proof. The jury was not given a plausibleexplanation for the existence of the incriminatingdocuments, which might have enabledthem to crystallizethe doubtsthey must surely have felt aboutChambers' largelyuncorroborated, often confused and self-contradictorystory. From the universeof relevantfacts, known and knowable,the de- fense had not succeededin extractingand placingbefore the jury the basisfor a reasonabledoubt aboutthe centralcharge of espi- onage.3And so it is not surprisingthat the defense,having failed to convincehigher courtsthat errorsof law vitiatedHiss's convic- tion, was led to rejectthe fatalconcession and to assertfor the first time that the incriminatingdocuments had not been typedon the machineowned by Hiss but had insteadbeen deliberatelyforged so thatall would think they had comefrom Hiss. The effortto demonstratethat forgery by typewritercould have takenplace and had in fact beencommitted was, legally,a failure. The motionfor new trialin which it was put forwardwas denied.' That was almostsix yearsago. Ancienthistory, one might think, and obscureancient history at that;for by the time the motionfor new trial came on to be arguedHiss had spent almosteighteen monthsin prison,the publicexcitement over the case had lapsed, and one may surmisethat most of the few peoplewho botheredto learn from their daily papersthat Alger Hiss had been denied a new trialhad no notionof why the new trialhad beensought and what merit, if any, there was in the plea.5 So it might have re- 3. As a matter of strict technical accuracythe charge against Hiss was perjury. He was indicted on two counts for having falsely sworn that he had not passed government docu- ments to Whittaker Chambersand that he had not seen Chambersafter January 1, 1937. As a practicalmatter, the trials were mainly devoted to proving the first count; indeed, much of the evidence tending to supportit also supportedthe second. The dates of the documents passed were such that if the jury believed they went from Hiss to Chambersthey necessarily also believed that Hiss saw Chambers after January 1, 1937. The essential charge, then, was that Hiss lied when he said he had not committed espionage (i.e., passed government documents to a person not authorizedto receive them). As a matter of substance,the charge being tried was a charge of espionage, in the familiar form of a perjury prosecutionto ob- viate what would otherwise be the bar of the statute of limitations. 4. The chronology is set forth, note 5 infra. It is interesting, although hardly profit- able, to speculate on what might have happened if the new defense theory of forgery by typewriter had been put before the jury at the first or second trial. See note 26 infra. 5. Hiss was found guilty on two counts of perjury on January 21, 1950, and sen- tenced to five years' imprisonment on January 25. The judgment of conviction was af- firmed on December 7, 1950, United States v. Hiss, 185 F.2d 822 (2d Cir. 1950), and the Supreme Court denied certiorari on January 27, 1951. 340 U.S. 948 (1951). The motion for new trial was filed on January 24, 1952, and argued on June 4. On July 22, May I958] TWO TYPEWRITERS 4II mained,a dustyfootnote to a famousold case,of interestonly to fanaticalpartisans of one or the otherprotagonist, had Alger Hiss not chosento carryhis plea to the only forum now open to him. Lawyerto the last, Hiss has titledhis book as a briefwould be captioned.But we areno longerin the UnitedStates District Court for the SouthernDistrict of New York. What we must take to be Alger Hiss's final brief has been filed in the court of public opinion.6What does it add to the stacksof pagesthat have piled up since Chambersmade his first public accusationin August, 1948? What the book is not appearsmore readilyon a first reading than what it is. It is not, to beginwith the most obviouspoint, an "insidestory." There is little in the bookthat couldnot be derived from a close (if biased) readingof the publicrecord and of con- temporaneousnewspaper accounts of the congressionalhearings and the trials. Very little of Hiss the man comesthrough, except a kind of stereotypeor folk-imageof the "smartlawyer"-austere, precise,a littlepicayune. We get no glimpseof the charmof man- neror the distinctionof mindwhich won andkept for him so many distinguishedfriends. Nor is his book the vehiclefor sensational new revelationsabout the facts. Hiss has not, as everyonemust now know, eitherconfessed that Chamberstold the truth or sug- gestedwhy Chamberslied. The bookis no moresensational in tone than it is in content. This has disappointedmany, and has con- vincedsome that Hiss mustbe guilty,because (so they say) a truly innocentman would be more vociferouslyindignant.7 I cannot agreethat guilt or innocenceare to be measuredin decibels;and I find the tone of the book-quiet, reasonable,almost good-temp- ered-a welcomeantidote to much of the sensationalismproduced by the case. But In the Courtof Public Opinionhas the defectsof its virtues. Its lack of dramaand color causethe attentionto flag, and this canbe fatalto a bookwhose impact must depend on mak- ing the readerpay closeand continuousattention to a verycompli- catednarrative. But we can agree that its quality as literatureis not what a commentatoron Mr. Hiss's book is expectedto celebrateor de-

1952, Judge Goddard,who had also presided at the second trial, denied the motion for new trial. 107 F. Supp. 128 (S.D.N.Y. 1952). 6. Hiss, IN THECOURT OF PUBLIC OPINION (1957) (hereinafter cited as HIss). 7. See, e.g., Editorial,Hiss in Public Opinion, The Washington Post and Times-Herald, May 10, 1957, p. A22. 412 STANFORD LAW REVIEW [Vol. Io: Page 409 plore.What we want to know is whetherthe booksheds any new light on the case."New light"cannot, after two trials,after convic- tion, afterappeal, mean a rearrangementof subordinatecorrobora- ting or impeachingfacts. It can only mean somethingthat will clarifyfor us the ultimatequestion of guilt or innocence. "Guilt"or "innocence,"in turn, cannotbe limited to the pre- cise chargeslaid in the indictment,because Hiss's defense was not merelythat he hadnot passedstate department papers to Chambers but,more sweepingly, that he hadnever taken part in underground Communistactivities of any kind. It is conceivablethat he was not guilty of the precisecharges for which he was convicted,and if that turnsout to be so, a miscarriageof justicecertainly occurred. But, in view of the positionof absoluteinnocence that Hiss main- tainedthroughout, not manytears will be shedfor him if it should appearthat he was up to his neck in other Communistactivities. The Hiss bookis devotedto showinghow andwhy he waswrongly convicted,not to establishinghis total innocence. Consequently, any assessmentof the book'scomparative success or failurehas to be limitedto what Hiss has to say aboutthe mannerin which, by his account,he was "framed"by WhittakerChambers. What he has to sayon this scorecomes down to a restatementof his motion for a new trial,which is thus now for the first time put beforea generalaudience. The essenceof his motionfor a new trialis the "tale of two typewriters,"which is an attemptto demonstrate,as Hiss saidjust beforehe was sentenced,"how Whittaker Chambers was able to carryout forgeryby typewriter."8In the rest of the Article I will attemptfirst to analyzethat tale and secondto ex- plore the assertionof total innocenceand the adequacyof the presentrecord on thatissue.9

8. Other grounds relied on in the motion for new trial included impeachment of the credibility of Edith Murray, a government rebuttal witness who had identified the Hisses as visitors at the Chambers residence in Baltimore; evidence tending to show that Chambers left the Communist party several weeks before the date of the last state depart- ment document which he claimed Hiss had given him as a Communist agent; and the assertion that Lee Pressman'stestimony, infra p. 432, showed that Hiss had not been in a Communist group to which Chambersclaimed he belonged. Hiss 385-95. Of these sev- eral grounds, perhaps the most troubling is the suggestion that Chambershad withdrawn from the undergroundCommunist movement before he could have received certain docu- ments from Hiss. The matter is not treated adequately in Judge Goddard'sopinion deny- ing the motion for new trial. However, the newly profferedevidence was not inconsistent with the possibility that Chambers was readying his retreat to respectabilityat the same time that he was winding up his work for the Communists. This possibility makes Cham- bers look a bit less highminded than he makes himself out to be; but that does not help Hiss. 9. In so limiting this considerationof the questions raised by Mr. Hiss's book, I do not mean to suggest that it contains nothing else of value or of interest. The book raises May I958] TWO TYPEWRITERS 413

I The "forgedtypewriter" theory is a complicatedone and cannot be intelligentlyevaluated without a detailedand, I fear, a tedious recitalof what the defensedid, what questionsit askedits experts (as well as what questionsit did not ask), and what answersits expertsgave (as well as what answersthey did not give). In Februaryof 1950, afterHiss's conviction at the secondtrial, Mr. ChesterLane enteredthe caseas counselof recordfor Hiss in connectionwith his appeal,which was briefedby Mr. Lane to- gether with Mr. RobertBenjamin and arguedby Mr. Benjamin. That appealended in the affirmanceof Hiss'sconviction by the Courtof Appealsfor the SecondCircuit and the denialof certiorari by the SupremeCourt. At the sametime, Mr. Lane began to specu- late on the possibilitythat the defenseat the trial was wrong in concedingthat the typewrittenstate department documents alleged to have been preparedon the Hiss typewriterand handed to Chambers(the "BaltimoreDocuments")'° had in fact been typed on the same machineas certainletters of Mrs. Hiss, which had been typed on a Woodstocktypewriter owned at one time by the Hisses (the "Hiss Standards").1 The defenseconcession was basedon the unchallengedevidence of an FBI experton questioneddocuments, Ramos C. Feehan,that the BaltimoreDocuments and the Hiss Standardshad been typed on the samemachine.l2 Feehan's testimony related the occurrence interesting and troubling questions about the interaction of congressional investigation with criminal prosecution,about the creation of an atmospherein which fair trial becomes measurablymore difficult,and about other aspects of the administrationof criminal justice which are not invulnerable to criticism. That these questions are important I would be the last to deny; but they are not unique to the Hiss case and the Hiss case is not unique becauseof them. 10. So called because they were proffered by Chambers during a pretrial deposition held in Baltimorein connection with a libel action by Hiss against Chambers. 11. The story of how the theory evolved and was tested is set forth in Hiss, c. XI, which consists of extracts from the motion for new trial, interspersed with connecting comments by Hiss. The complete text of the motion with supporting affidavits is con- tained in Appendix to Appellant's Brief on Appeal From Order Denying Motion for New Trial on Ground of Newly Discovered Evidence pp. 4a-169a, United States v. Hiss, 201 F.2d 372 (2d Cir. 1953) (hereinafter cited as Motion Papers). Interested readers will want to consult these documents in their entirety, particularlythe affidavitsof Mr. Chester Lane, from which I have drawn the account that follows. 12. At no time in his cross-examinationwas Feehan challenged as to his conclusions about the similarities between the Hiss Standards and the Baltimore Documents. Mr. Claude Cross, Hiss's attorney at the second trial, conceded in his summation that the Baltimore Documents had been typed on the Hiss typewriter, and no question was ever raised as to whether the typewriter in evidence, 230099, was the Hiss typewriter. As Mr. Cross put it: "it is not the question of what typewriter was used but who the typist was." Transcriptof Record, p. 3162, United States v. Hiss, 185 F.2d 822 (2d Cir. 1950) (hereinaftercited as Transcriptof Record). 4I4 STANFORD LAW REVIEW [Vol. Io: Page 409 in the two sets of documentsof similardeviations from the norm in ten characters.Mr. Lane speculatedthat it might be possibleto constructa typewriterthat would duplicatesome or all of the characteristicsof anothertypewriter and that if it were possibleto do so, doubtwould be caston Feehan'sconclusion that the presence of similaridentifying characteristics in the BaltimoreDocuments and the Hiss Standardsmeant that they had been typed on the same machine. In short,the firstpart of Mr. Lane'stheory was that forgeryby typewritercould be committed. It would still remain,of course, to show a probabilitythat forgeryby typewriterhad been com- mitted. Mr. Lane asked a typewriterengineer named MartinTytell whetherit would be possible,without having a particularmachine in his possession,but workingonly from samplesprepared on that machine,to makeanother machine that would producework con- tainingsufficient similarities to the originalsamples that the tests appliedby Feehanwould resultin the conclusionthat the samples and the "forgeries"were produced on the samemachine. If Tytell had said "No,"that would presumablyhave been the end of the matter,and the casewould not havetaken its new and interesting turn. But Tytell did not discourageMr. Lane. On the contrary, he went beyondMr. Lane'squestion and said that he could not only producea typewriterthat would duplicatesome of the char- acteristicsof an originalsample but that he could producea ma- chine thatwould do work so similarin all respectsthat no expert, even one forewarnedabout the possibilityof forgeryby typewriter, could distinguishthe work producedon the fake machinefrom the originalsample. (It shouldbe saidat this pointthat Tytell did not entirelysucceed in making good his claim.) Encouragedby Tytell's optimism,Mr. Lane commissionedhim to build a type- writer that would effectively"forge" samples produced on the typewriterintroduced into evidenceat the trialas the Hiss machine. (Since thereis a questionwhether that typewriterwas in fact the Hiss machine,I will not referto it as suchbut instead will designate it by the serialnumber it bears,"230099.") Number230099, as all who followed the Hiss casewill recall, was a Woodstocktypewriter which, it appeared,had originally been owned by Mrs. Hiss'sfather, Thomas Fansler. It had been used by Mr. Fanslerin his business,had beengiven by him to the May I958] TWO TYPEWRITERS 415

Hisses,had beenused by them,had been given to PerryCatlett, the son of one of theirmaids, during or afterone of theirmoves, prob- ably in the winter or spring of I938, had then passedthrough varioushands and had, finally, on the eve of the first trial, been locatedand purchasedby the defense. It was introducedinto evi- denceat bothtrials and had beenconsidered by all concernedto be the machineon which boththe Hiss Standardsand the Baltimore Documentswere typed. (Indeed,the primarydefense effort was to show that the machinehad been given to PerryCatlett before the earliestdates on which the BaltimoreDocuments could have been typed.) After the secondtrial, 230099,together with other defense exhibits,came into Mr. Lane's custodywhere it has re- mainedever since. Mr. Lane suppliedTytell with specimensof typing done on 230099.13Tytell never saw the machine itself. Working entirely from the specimens,Tytell set aboutto constructa machinethat wouldproduce work indistinguishable from the specimens.Mean- while, Mr. Lane attemptedto get the servicesof an examinerof questioneddocuments who would inspectthe resultsas the work progressedand give suggestionsfor improvements.He encoun- tered great reluctance,apparently motivated either by disbelief that the experimentcould succeedor by fear that it might. (The stock-in-tradeof examinersof questionedtypescripts is that type- writersare unique,and a conclusionthat their supposedlyunique characteristicscan be reproducedwould have as shatteringan effect on the art of documentexamination as a discoverythat fingerprintscan be artificiallyforged would have on the present policesystem of identification.)14But at length Mr. Lanefound a professional,Miss ElizabethMcCarthy, who was willing to break ranks. She aided in the work, comparedthe productof Tytell's machine with the samples of 230099, and pointed out where the similaritieshad been fixed and where further refinement was neces- sary. Finally, after some eighteenmonths of work, impededby the difficultyin getting expertadvice, Tytell produceda machine whose work, so MissMcCarthy swears, is so similarto the 230099

13. There had been testimony at the trial that the Hiss typewriter was unworkable when it was given to Perry Catlett and had remained so subsequently. The defense did not have 230099 repairedafter they obtained it. It was typed on without apparentdifficulty at the trial, Transcriptof Record, p. 3019, and Mr. Lane had no difficultyin using it to pre- pare specimens for Tytell. Hiss 374. 14. For a descriptionof the technique of examining questionedtypescripts, see OSBORN, QUESTIONEDDOCUMENTS, C.32 (2d ed. 1929). 416 STANFORD LAW REVIEW [Vol. Io: Page 409 samplesthat, althoughshe herselfcan still detectdifferences, "an expertin the field,however highly qualified,would find it difficult if not impossibleto distinguishbetween samplesfrom the two machines."15 Anotherexpert, Mrs. Evelyn Ehrlich, was calledupon to give an opinion whether the product of 230099was distinguishable from that of the Tytell machine. For some reasonthat Mr. Lane doesnot explain,Mrs. Ehrlich was forewarnedabout the possibility of forgery,and her opinionreiterates in substancethe conclusion reachedby Miss McCarthy:that she could detectthe differences, but only becauseshe had beenforewarned, and that an expertwho was not forewarnedcould not have detecteddifferences.16 Two obviouscomments on this opinionof Mrs.Ehrlich's: First, Tytell's claimwas not substantiated-anexpert who wasforewarned could tell the difference;second, and moreimportant, the opinionlacks the authorityit might havehad if Mrs.Ehrlich had not been told in advancethat forgerywas involvedbut had simplybeen asked to saywhether a certaingroup of documentshad all beentyped on the same machine. If that procedurehad been followed,then we might have the opinionof an expert(not forewarnedabout forg- ery) thatthe documentswere all typedon the samemachine. Such an opinionwould be far more convincingproof of the possibility of successfulforgery than is the opinionwe havefrom Mrs. Ehrlich: that she can tell the differencebut that she doesn'tthink anyone else, unforewarnedand applyingthe conventionaltests, could do so. Of course,there is anotherpossibility. Mrs. Ehrlich,unfore- warned,might still have succeededin separatingthe productsof the two typewriters;and if thathad happened,Mr. Lane wouldn't have had much to show for the Tytell experiment.As it is, we have only an opinion that it would be possibleto forge a type- writerthat would fool an expert;we do not haveproof in the form of an expertwho has been fooled. However, this cavil goes only to the investigativetechnique followedby Mr.Lane. In fairnessto him, it shouldbe pointedout that his experimentwas cut shortby the necessityof filing the mo- tion for new trialwithin two yearsafter the finaljudgment against Hiss.17The Tytell machinecould havebeen improvedfurther, so

15. Hiss 370. See also Motion Papers 58a. 16. Motion Papers 62a, 156a. 17. FED.R. CRIM.P. 33. May 1958] TWO TYPEWRITERS 417

Tytell says,and possiblyan expertcould have been fooled by the similaritybetween its productand that of 230099. Indeed,the de- fensesubmitted samples from the two machinesand challenged the Governmentto haveits expertsstate which documentswere typed on which machine,a challengewhich the Governmentignored (as it was entitledto do on a motionfor new trial). The constructionof the Tytell machine certainlysuggests at the very least that forgeryby typewritercan be committed. But had it been? Let us considerfor a momentwhat would be convinc- ing proofthat a forgedtypewriter had beenused to typethe Balti- moreDocuments. We havethree pieces of evidence:(a) the Hiss Standards,(b) the BaltimoreDocuments, and (c) the samples typed on the typewriterin evidence,230099. We have, let us say, an (unforewarned)examiner of questioneddocuments whose competenceand impartialityare beyondreproach. He examines and comparesthe documents.What is the rangeof possiblecon- clusions? He may, of course,conclude that all three categories were typed on the same typewriter.That, in effect,was the con- clusionreached at the trial,although it was in partbased on mere surmisebecause there was no comparisonof the Hiss Standards and the BaltimoreDocuments, on the one hand, with samplesof typing from 230099, on the other. Or, our expertmight conclude that eachof the threecategories was typedon a differentmachine. Such a conclusionwould possiblyprove too much,for it is almost inconceivablethat the Hiss Standardsand the BaltimoreDocu- ments were typed on differentmachines and that neither was typedon 230099.A tale of threetypewriters would lead us to think that our expertis being over-refinedin his analysisand is spotting differencesthat arenot significant. Our expertmight, then, concludethat the Hiss Standardsand the BaltimoreDocuments were typed on the same machine,but that machinewas not 230099.That conclusionwould mean that 230099was not the Hiss typewriter,but the essenceof the case againstHiss was not that 230099was the Hiss typewriterbut that the Hiss Standardsand the BaltimoreDocuments came from the same typewriter,whatever that typewriterwas. The only evidence,then, that at thispoint in our analysiswould seem to substantiatea chargeof forgeryis evidencethat the Hiss Standardsand the BaltimoreDocuments were typed on different machines,and thatone of the machineswas 230099.Does it matter 4i8 STANFORD LAW REVIEW [Vol. io: Page 409 which set was typedon 230099? I think that it does. If our expert were to tell us thatthe Hiss Standardsbut not the BaltimoreDocu- mentswere typed on 230099,there would be no difficultyin fixing the provenanceof 230099.It would be just what it appearsto be: the typewriterwhich the Hisses owned and used until 1937 or 1938, when they gave it to PerryCatlett, and which then passed throughvarious hands until it was discoveredby the defensein- vestigatorsin the springof I949. There would be no questionof anyone'shaving tamperedwith that typewriterin some unex- plainedway. The forgerywould have beencommitted, as Tytell's work leadsus to think it might havebeen, by someone'sconstruct- ing a machinefrom samplesof the typework of 230099and using that machineto type the BaltimoreDocuments. But if our expertwere to tell us thatthe Hiss Standardsdid not come from 230099but the BaltimoreDocuments did, a numberof troublesomequestions arise that would not have arisenin the case just mentioned. What these questionscome down to is this: If 230099is not the Hiss typewriter,how did it come to be found where the Hiss typewritershould have been? And how did Chambers(if there was forgery and he was the forger) know wherethe Hiss typewritershould have been expected to be found? And if, somehow,he knew that,why did he not use the Hiss type- writeritself insteadof laboriouslyconstructing a forgeryand then plantingit in placeof the purloinedHiss machine? We shallhave to returnto these questionsat greaterlength because,as we shall now see, the theoryadopted by the defenserequires them to be answered. After makinga comparisonof the originalsof the Hiss Stand- ards,the BaltimoreDocuments, and samplesfrom 230099,for the firsttime, Mrs.Ehrlich reached the firm conclusionthat the Hiss Standardshad not been typedon 230099.18However, she was not able to say definitely whether the BaltimoreDocuments were typedon 230099,because the gradeof paperand the qualityof the ribbonused in typing the BaltimoreDocuments made them un- suitablefor comparison.Similarly, she was not able to say defi- nitely that the BaltimoreDocuments and the Hiss Standardswere typed on differentmachines, and she limited herselfto the con- clusionthat "the observablepeculiarities in the type of the Balti- more Documentsin my opinionmore nearly resemble the peculi- 18. Hiss 413. See also Motion Papers 155a-61a. May I958] TWO TYPEWRITERS 419 aritiesin the typingfrom #N230099 than they do the peculiarities in the Hiss Standardswhich I used for comparison."'1 Miss McCarthyalso examinedthe originalsof the three sets of documents.Her conclusion(not referredto in Hiss'sbook) is worth quoting in extenso: Without consideringthe possibilityof forgery, I should have con- cluded, by all standardtests ordinarilyapplied by questioneddocument examiners,that all three sets of documentswere typed on the same ma- chine. I should not have based this conclusionmerely upon an inconse- quential number of relativelyidentical peculiarities,but upon the more convincing fact that I find no substantialconsistent deviations in type impressionsas among the three sets of documents. However, my own experience has shown me that it is possible, by careful work on a machine, to eliminate almost completely the deviations which would normallyhave developedbetween its typing and that of anothermachine, and therefore,while I cannot say definitelythat all three sets of docu- ments were not typed on the same machine,I believe it just as possible, in the light of the observablefacts, that the BaltimoreDocuments were typed on a machine which was not the original Hiss machine used for the standards,but anothermachine made to type like the original Hiss machine. Since the typing of the BaltimoreDocuments so closely re- sembles the typing of the specimensfrom the so-calledHiss machine, and since Dr. Norman has furnished evidence that that machine is a deliberatelyfabricated one, I can only concludethat, as between the two possibilities,the forgeryof the BaltimoreDocuments is the more likely. If the BaltimoreDocuments are forged, the forgery is a good one, but it is no betterthan I know would be possiblewith carefulworkmanship.20

This is prettyindecisive evidence. Miss McCarthyadmits that if she were not alertedto the possibilityof forgeryshe would have concludedthat all three sets of documentscame from the same machine. But,as she herselfsays, she was alertedto thatpossibility, and further,she was apprisedof the existenceof certainother indi- cations(which we shallcome to presently)that forgery might have been committed.In this stateof hyper-consciousness,is it entirely unreasonableto supposethat MissMcCarthy may have looked so hardfor signs of divergencethat she found what she was looking for-and that what she was looking for was, in fact, not there? The examinationof questioneddocuments is, after all, not an exact science; it is the exerciseof judgment-highly informed, technicallycompetent, but still, in the end, judgment. It is this

19. Motion Papers 159a. 20. Motion Papers 149a-50a. 420 STANFORD LAW REVIEW [Vol. o1: Page 409 considerationthat makes it especiallyunfortunate that Mr. Lane did not obtaina completely"blind" expert opinion on the samples from 230099and the Tytell machine. If we had that, we would have somekind of benchmarkfor assessingwhat weight,if any,to assignto the fact that the examinationof the crucialpapers-the BaltimoreDocuments and the Hiss Standards-wasex necessitate carriedon by expertswho were alive to the possibilityof forgery, and whosejudgment must have been affectedby theirknowledge. As it is, we can only surmise,and if therewere no otherevidence tendingto supporta conclusionof forgery,my surmisewould be that Mr. Lane'sexperts (acting, be it said, in perfectgood faith) had beeninfluenced by theirconsciousness that forgery might have been committedinto concludingthat it had been when in fact it had not. We would be justified,I think,in dismissingthe defensetheory if it restedon no morethan what I have just described.But com- parisonof the documentsdid not exhaustthe basisfor concluding that forgery had been committed. Mr. Lane's investigationled him to conclude,and to offerevidence in supportof his conclusions, that 230099 itself, its history and its present condition considered, was-irrespectiveof what one might be able to proveabout docu- ment comparison-a machinedeliberately fabricated to appearto be what it was not. He asserted(i) thatits probabledate of manu- facturemade it in the highest degreeunlikely that 230099could have been the typewriterwhich Mr. Fanslerowned and latergave to the Hisses,and (2) thatthe typeand type bars of 230099showed unmistakablesigns of having been alteredin ways inconsistent with the normalprocesses of manufactureand repair. Mr. Lane's second point, that the machine showed signs of having been tamperedwith, rests on expert opinion: in this in- stance,that of Daniel P. Norman,president of a firm engagedin the physicaland chemicalanalysis of metals,papers, and other substances.21It is, like the opinion of Miss McCarthy and of Mrs. Ehrlich, and like all expert opinion, a matter of judgment,of the assessmentof probabilities,and not of airtightcertainty. It is sharplycontested by the opinionof expertsmustered by the Gov- ernment.22The most that can be said of it is that, if believed, Norman'sopinion lends some support to the conclusionthat 230099

21. Hiss 403-4. See also Motion Papers 123a-33a. 22. Motion Papers 192a-94a, 226a-31a. May I958] TWO TYPEWRITERS 421 was deliberatelyaltered for the purposeof committingforgery, butonly when takentogether with otherevidence of forgery,if that evidenceis believed. In quitea differentcategory, however, is Mr.Lane's contention that 230099 was manufacturedby Woodstocktoo late to be the Hiss machine.Leaving aside for the momentthe questionof what Mr. Lane was actuallyable to producein supportof this conten- tion, we can agreethat if it couldbe shown,say, that Mr. Fansler, Mrs.Hiss's father, owned the "Hisstypewriter" in Julyof 1929 but that230099 was not manufactureduntil August of I929, then230099 is not the Hiss typewriter.This is not a matterof probabilitiesbut of plain historicalfact. However,at the risk of wearisomerepeti- tion, I mustpoint out that even if this is established,as a matterof historicalfact, Hiss is not home free. All that has been provedis that230099 is not the machinewhich the Hissesonce owned. That fact is significantonly if the Hiss Standards(which we know were typed by Mrs. Hiss on a machinethen in the Hisses'possession) and the BaltimoreDocuments were not typed on the same ma- chine. If they were,the provenanceof 230099is utterlyirrelevant. So we are thrownback on Mrs.Ehrlich's opinion, and that opin- ion, as we have seen, did not take a firm positionon the crucial question,but only on the questionwhether the Hiss Standards were typedon 230099. This puts the matterin the light most unfavorableto Hiss's contention.On the other side, it should be pointed out that the three items of "forgery"evidence-the dissimilarityof the Hiss Standardsto 230099,the abnormalalteration of 230099,and the date of manufactureof 230099-are mutuallyconsistent. They all have a tendencyto supportthe same conclusion:that the Hisses neverowned 230099 and that it is the typewriterby meansof which forgerywas committed.This seemspainfully obvious, but consider for a momentits significance.As I pointedout before,the forgery theory can take one of two equally plausible (or implausible) forms: (a) the forgerywas committedon an unknownmachine and the typewriterwhich turned up (230099) is the Hiss type- writer;or (b) the forgerywas committedon 230099and that ma- chine is not the Hiss typewriter.The formertheory, a priori,is by far the morelikely of the two, becausefrom all the evidenceintro- ducedat the trialit seemsthat 230099 should be the Hiss machine. Yet the threepieces of evidencewhich may in somedegree conduce 422 STANFORD LAW REVIEW [Vol. Io: Page409 to a conclusionthat forgerywas committedall point to the more difficultof the two theories.Each of thesepieces of evidencetends to bolsterthe reliabilityof each of the other two. Sincetwo of the threeitems are mattersof expertopinion evi- dence,with all the limitationsthat fact implies,the third item- the history of 230099-assumescritical importance. It does not flout the laws of probabilitythat two experts,each approachedin a highly tendentiousway, could reachmutually consistent conclu- sions abouttwo separatebut complementarypropositions and yet be wrong. Butby how muchis the probabilitythat they arewrong reducedif their conclusionsagree with a third connectedproposi- tion whichis not a matterof opinionat all butof demonstrablefact ? If Mr. Lane had succeededin establishingthat 230099was not the Hiss typewriter,then an impartialobserver could not lightly dismiss the opinion evidencethat the Hiss Standardswere not typedon 230099and that 230099 had been deliberately altered. And if thesethree propositions were accepted as true,even in the absence of a clear-cutopinion that the Hiss Standardsand the Baltimore Documentswere not typedon the samemachine or that the Balti- moreDocuments were typedon 230099,or both, then it would be a disingenuousobserver indeed who couldresist the conclusionthat there had been dirty work at the crossroads.Typewriter A does not turnup in a locationand undercircumstances suggesting that it is TypewriterB by mere happenstance.(However, as I shall presentlyshow, such a conclusiondoes not necessarilyexonerate Hiss, even of the precisecharge againsthim, let alone of Com- munistcomplicity in general.) The troubleis that Mr. Lane, throughno fault of his own- indeed,after performing near-miracles of intelligentinvestigation -was not ableto nail the point down. His argumentis: (i) The serialnumbers and productionrecords of the Woodstockcompany for the yearI929 indicatethat 230099 was not manufacturedbefore July 3 at the very earliestand probablynot manufactureduntil August or Septemberof that year. (2) Expert examinationof letterstyped in Mr. Fansler'soffice indicates that he acquiredthe typewriterwhich laterwent to the Hissessometime between June 29 and July 8, 1929. (3) It is thereforevirtually impossible for 230099to be the Hiss machine.The impliedconclusion, of course, is that 230099was acquiredas a reasonablefacsimile of the Hiss machineby the forgeror forgers,who alteredit to conformeither May I958] TWO TYPEWRITERS 423 to the original Hiss machineor to samplesof typing from that machine,used it to producethe BaltimoreDocuments, and then left it where it would eventuallybe discoveredand mistakenly identified,as it was, as the Hiss typewriter. Mr. Lane'saccount of his effortsto establishthe impossibility of 230099'shaving been the Hiss machinereads like one of those melodramasin which the hero is forever just on the verge of making the great discoverythat will clear everythingup when he is checkmatedby some implacableand invisibleforce, whose identity we never learn until the last page. The only difference hereis thatthere is no lastpage. Mr.Lane, like the heroof a penny dreadful,was frustratedin what must have been a heartbreaking way at everyturn, but the frustrationswere never resolved.23 Defenseinvestigators obtained monthly production figures and the approximateserial numbers put on machinesmade in January, I929, March, I929, and January, I930. Comparison of the figures showed a discrepancy;the differencebetween the two January serialnumbers suggested that 42,000 machineswere madein I929, but the monthlyproduction records showed that only 28,548were made. It seemed, therefore,that 13,452 serial numbers were skippedduring the year. Typewriter220000 was made some time in March.Assuming that all numbersskipped were skipped before 230099was manufactured(the assumptionmost unfavorableto his theory), Mr. Lane reasonedfrom the productionfigures that the highestserial number produced in Junewas 229866,that 230099 would have been producedon July 3 at the earliest,and that it was highly unlikely that Mr. Fanslercould have used in Phila- delphia on July 8 a typewritermade in Woodstock,Illinois, on July 3, especiallysince the interveningdays included both the Fourthof Julyand a weekend.Unfortunately, Mr. Lane was work- ing from incompletefigures supplied to his representativeby the Woodstockpeople. Mr. Lane'srepresentative was not given direct accessto the figures,the Woodstockpeople declinedto sign an affidavitprepared by his representative,and his representativede- clined to make an affidavitthat he had preparedthe affidavitthat the Woodstockpeople wouldn'tsign-all apparentlyfor fear of getting mixed up in the Hiss case! As if this weren'tbad enough, one of Mr.Lane's associates managed to trackdown the typewriter

23. The story of Mr. Lane's quest is summarized in Hiss 376-82. See also Motion Papers,passim. 424 STANFORD LAW REVIEW [Vol. I1: Page 409 salesmanwho had sold Mr. Fanslerhis Woodstock,only to dis- coverthat he had apparentlyburned all his sales records(which would have containedthe most conclusiveevidence of when Mr. Fanslerbought his Woodstock)after an earliervisit from the FBI. Lurking in the backgroundwas the interestingsuggestion that the FBI had, in the earlierstages of investigation,been looking for a Woodstockwith a lowerserial number than 230099. But this was hearsay,as Mr. Lanenever managed to get an affidavitout of any of thosedirectly involved; and, at any rate,the FBI deniedit. Of the three items of "forgery"evidence, the one relatingto the date of manufactureof 230099,although far from conclusive, is the most stronglysuggestive. It is also, consideredapart from the other two items, the most credible. It is so, it seems to me, becauseit is not based on the judgmentof expertsbut on data which all are equally competentto assess. The difficultyI have with the Ehrlichand the Norman evidence,aside from their in- trinsicambiguity, is thatin pointof time theywere developed after therewas reason to supposethat 230099 was not the Hiss typewriter and, presumably,with knowledge thereof. If an expert knows what he is lookingfor, the chancethat he will find it is increased; to sayso is not to impugnthe integrityof experts,but only to assert that they are not unlike the rest of us. A conspicuousexample of what I mean is to be found in the affidavitof Miss McCarthy quoted earlier.24She was inclined to think that the Baltimore Documentshad been typed on 230099because of Mr. Norman's conclusionthat 230099was a deliberatelyfabricated machine. To what extent did Mrs.Ehrlich and Mr. Normanreach the conclu- sions they did becauseMr. Lane had ratherconvincingly demon- stratedthat 230099was probablynot the Hiss typewriter? What all of this seemsto comedown to is that Mr.Lane raised interestingand troublesomequestions but that he did not demon- stratethe probabilityof forgeryby typewriterto the point where a judge could say,as he must underthe federalstandard, that "on a new trial,the newly discoveredevidence would probably produce an acquittal."25At best,Mr. Lane uncovered leads which, if it had been possibleto pursuethem, might have resultedin the produc- tion of evidencethat would exonerateHiss of the specificcharge

24. See p. 419 supra. 25. United States v. Hiss, 107 F. Supp. 128, 136 (S.D.N.Y. 1952), citing Johnson v. United States, 32 F.2d 127, 130 (8th Cir. 1929). May I958] TWO TYPEWRITERS 425 broughtagainst him. Which is to say only thatI think the motion for a new trial was, as a matterof law, rightlydenied.26 But the federalrule on new trialsis not the rule that prevails in the courtof publicopinion. So let us speculatea little further. Let us assumethat Mr. Lane has succeededin convincingus that the Hiss Standardswere not typedon 230099,and that230099 was a deliberatefabrication used to typethe BaltimoreDocuments with the designof incriminatingAlger Hiss. How and when was this done? Bearin mind that we have now eliminated,by hypothesis, the possibilitythat the BaltimoreDocuments were typed on the Hiss typewriterand that as a resultwe now have two typewriters to accountfor. Mr.Lane theorizes that the forgeryprobably took placein I948, after Hiss had filed his libel actionagainst Chambers. Until that time, he points out, Chambershad never assertedthat Hiss had committedespionage and, indeed,had deniedthat espionagewas involved. We are invitedto infer that in the face of a ruinoussuit against him, to which he had no adequatedefense, Chambers forged the BaltimoreDocuments (perhaps from microfilm or other copies of the underlyingpapers in his possession)so that they would furnish incontrovertibleproof that Hiss had com- mitted espionageand, therefore,that Chambers'allegations about Hiss's Communistconnections were true.27 This aspectof Mr. Lane'stheory readilylends itself to criti- cism.28First, there is the time element. Chambers'initial accu- sationsagainst Hiss weremade in August,1948. The libel suitwas filed in September,after Chambershad repeatedhis accusations in a nonprivilegedform. Chambersproduced the incriminating papersin November,during pre-trial examination in the libel suit. Two monthsis not a very long time in which to fabricatea type- writer (how long would it take just to find a Woodstockof the right vintage?), forge the documents,treat them so that they

26. It does not by any means follow, however, that Hiss's chances of acquittal would not have been greater if the "forged typewriter" theory had been used by the defense at the trial. It is probablyeasier to create a reasonabledoubt in a jury's mind in the first in- stance, and thereby to secure an acquittal, than it is to persuade a judge after conviction that a given piece of evidence would probably have created such a reasonabledoubt, and thereby to securea new trial. The effect of McCarthy,Ehrlich, Tytell, Norman et al. might well have turned the tide before a jury. But it is still some distance from that possibility, however strong, to the probability that a judge determining a motion for new trial must find. 27. Hiss 373-74. 28. Which it has received. See, especially, the careful review by Sidney Hook, New York Times, May 12, 1957, S 7, p. 1. 426 STANFORD LAW REVIEW [Vol. Io: Page 409 would not appearto be brand-new,and plant the fake typewriter where it might be discovered.29Second, it is unlikely that such a forgeryis a one-manjob. It suggeststhe existenceof an efficient and experiencedorganization. This Chambersdid not have in 1948,ten yearsafter breaking with Communism.Third, there is the troublingquestion of why a fake typewriterwas used. Either Chambersknew wherethe real Hiss typewriterwas or he did not. It seems almost incrediblethat he could have known, unless he was in contactwith Hiss in 1937or I938when the typewriterwas given to PerryCatlett, which Hiss denies,and which is precisely the charge containedin the second count of the indictment. I would go so far as to assertthat if Chambersknew in August or Septemberof 1948where to lay his hands on the Hisses'Wood- stock typewriter,much of what Hiss said aboutthe extent of his acquaintancewith Chambers,and, by easyinference, his denialof any kind of Communistactivity, is untrue. Furthermore,if Cham- berscould lay his handson the old Hiss Woodstock,why not use it to type the incriminatingdocuments? It is hardly an answer to say that the machinemay have been unworkable.No matter how bad its condition,it would surelyhave been easierto repair the machinethan to constructa new one. On Mr. Lane'shypothesis, it seemsfar likelierthat Chambers did not know whereto find the Hiss typewriter-not only likelier but also more compatiblewith the truth of Hiss'sown story. Let us imagine,then, a forgerequipped with samplesof typing from the Hiss machine (hoarded,one must suppose,for well over ten years!) and armedwith expertskill in duplicatinga typewriter's characteristicsfrom samplesof its work. He puts his knowledge to work, altersa Woodstockmachine of aboutthe same vintage as the Hiss machine(which he eitherknows from earlierinspec- tion of that machineor deducesfrom the samples),and produces the BaltimoreDocuments. What does he do next? He gets rid of the fake typewriter.He does not plant it any- where. The risks are too great. If he does not know where the originalHiss machineis, he does not dareto plant the fake any- where,for thereis alwaysthe risk that the originalmay turn up. Nor will it do to say that the forgerknows that the Hiss machine cannotturn up. He couldonly know that if he were satisfiedthat the machinehad been destroyed(and the evidenceof severalwit- 29. A possible modification of Mr. Lane's theory would be that Chambersanticipated the necessity for producing the documents well before Hiss filed his libel action in Septem- ber, possibly even before the public hearings in August. May 1958] TWO TYPEWRITERS 427 nessesshows that it had not been) or if he had it himself,a possi- bilitywhich is excludedby the fact thathe has constructeda dupli- cate machine. Furthermore,there is nothing to be gained by planting the fabricatedmachine. The forger knows that docu- mentsare normally identified as comingfrom the sametypewriter by comparisonof the documentswith eachother, not by compari- son of the documentswith the typewriter.It is enough that the BaltimoreDocuments are put forwardand comparedwith speci- mens that necessarilycame from the Hiss typewriter(the Hiss Standards).Our forgermay be confidentthat the Standardswill turnup (as they did) oncethe questionof comparisonbecomes im- portant. Not only is it enoughto have the two sets of documents withoutthe typewriter,but the physicalpresence of the fake type- writeris vulnerableto just the sort of attackthat the defense(be- latedly,it is true) has leveled againstit. You can't date a type- writerwhose serialnumber you can'tobserve. You can'texamine the type barsof a machinethat you don't have. It is, in short,in the highestdegree unlikely that if the BaltimoreDocuments had beenforged, the typewriterwhich we know as 230099would ever have been unearthed.It would have servedits purposeand been destroyed.Its very existencegoes far to negatethe possibilitythat a forgerytook place in 1948. Suppose,however, that therewas forgeryand thatit took place at some earliertime. Would the same objectionsstill hold? One that would of coursebe eliminatedis the time issue. If not con- finedto two or threemonths in the fall of 1948,it is far moreprob- able that the forgerwould have been able to producea successful duplication.Also, it is likely thatif forgerywas committed,it was done at a time when Chambersstill had at his beck and call the servicesof undergroundCommunist operatives, skilled in all the black arts. Finally, if the typewriterwas forged at some time duringChambers' days in the Communistmovement, it couldhave beenplanted before the Hissesdisposed of it, and the originalHiss machinecould have been taken away and used to type the Balti- more Documents.There would then be no problemof two type- writersturning up, for one would be in the handsof the conspir- ators. However, that one would not be, as has been generally assumed,230099, but would be the Hiss machine. It would pre- sumablybe destroyedafter it had servedits purpose. And the forged typewriter, 230099,would be left to go through the vicissi- tudesthat were describedat the trial. The problem-so damning 428 STANFORD LAW REVIEW [Vol. Io: Page 409 to the defense'sargument-of how and when the fake was planted evaporates.And the disparitybetween the Hiss Standardsand the samplesproduced on 230099becomes perfectly understandable. It seemsto me that this theory,which the defensedid not adopt, fits the forgery hypothesisfar more neatly than does the 1948 theorywhich the defenseadvanced in supportof the motion for new trial. If the machine was fabricatedduring the mid-I93o's,when Chamberswas still a memberof the Communistparty, the Balti- moreDocuments must have been typed much later, at a time when Chamberswas eitherin the processof withdrawingfrom the Com- munist movementor had alreadydone so. This suggestsa possi- bility not hitherto raised-that the typewritermight originally have been fabricatedfor a differentpurpose than that for which Chambersultimately used it. Perhapsit was originallyconstructed for the purposeof producingforgeries which could be used to blackmailHiss into joining the Communistmovement or, what maybe morelikely, into continuingwith the movementand gradu- ating from studygroups to espionage.We know from Chambers' own accountthe doubtsthat assaileven the most devotedof Party memberswhen he is first detailedto go into undergroundwork. Chamberspromised his wife he wouldn'tdo it, but then changed his mind.30Perhaps Hiss's scrupleswere harder to overcome. Perhapshe was then confrontedwith copies of highly incrimi- nating documentswhich looked for all the world as if they had come from his own typewriter.Perhaps he was warnedthat, if he refusedto cooperate,these might fall into the handsof Ameri- can counterespionageagents, with the obviousresult that his career would be ended. Perhaps,confronted with this evidenceof the Party'simplacability, he yieldedand movedto a less innocentlevel of activitythan was involvedin the "studygroup" in which he was placed by the testimonyof Chambersand of Nathaniel Weyl. And perhaps,when Chambersfinally broke with Communism, he triedto use the samemeans to blackmailHiss out of the Com- munist undergroundas he had used to blackmailhim in. And, the ultimateirony, perhapseverything Chambers has said about Hiss'sinvolvement with Communismwas true exceptfor the one act of allegedespionage for which, in effect,Hiss was convicted. The readerwho has stayedwith me to this point will doubtless 30. CHAMBERS,WITNESS 279-82 (1952) (hereinafter cited as CHAMBERS). May 1958] TWO TYPEWRITERS 429 be asking whetherI really believeany such wild tale as the one I have just sketched. Of courseI have no basisfor believingit. But the point is that this story,or any one of a dozen variations on it, will fit the defensehypothesis of forgeryby typewriteras well as, or betterthan, the exculpatoryargument they make. In short,there is no reasonwhy the theoryof forgeryby typewriter is inconsistentwith Hiss'sguilt, if by "guilt"we meaninvolvement in clandestineCommunist activities. We mustnot lose sightof the otherincriminating evidence in the case. Granted,as the defense argues,that Chamberswas just as likely to commit perjuryin 1949-50 as he was duringhis Communistcareer, it is hardto con- clude that his associationwith Hiss was as casualor as short-lived as Hiss made it out to be, especiallywhen the testimonyof two otherwitnesses, Hede Massingat the secondtrial,31 and Nathaniel Weyl subsequently,before a congressionalcommittee,32 tends to supportthe conclusionthat Hiss was to some extent involvedin Communistactivities. True, this is not what Hiss is chargedwith. He is chargedwith having lied when he denied passinggovern- ment documentsto Chambersor knowing Chambersafter Janu- ary I, 1937. But, in the light of his consistentassertion of total innocence,it would hardly constitute"vindication" for Hiss to provethat he was wronglyconvicted on thosetwo countsby show- ing that his Communistactivities were not of the kind, and did not take place at the time, that Chamberstestified to. It is undeniablethat the zealousefforts of Mr. Lane and his associatesin constructingand supportingtheir theoryof forgery by typewriterraise doubts about the Hiss case. It is far from clear, as I have tried to demonstrate,that thosedoubts, if they turn out to be well-founded,will necessarilylead to exonerationof Hiss in any but the narrowestand most technicalsense. II The Hiss case is still a mysteryand, in its narrowestaspect, may well remainone. By its narrowestaspect, I meanthe question of the documents:Were they the subjectof espionageby Alger Hiss? This questionnecessarily occupied the centerof the stage 31. Hiss 307-11. For the text of Mrs. Massing's testimony, see Transcriptof Record, pp. 1261-1301. 32. Hiss 308 n.6. For the text of Weyl's testimony, see Hearings Before the Subcom- mittee to Investigate the Administration of the Internal Security Act and Other Internal Security Laws of the Senate Committee on the Judiciary, 82d Cong., 2d Sess., pt. 8, at 2795-2823 (1952). 43° STANFORD LAW REVIEW [Vol. ro: Page 409 at the trials,for the chargeagainst Hiss, though cast in the form of perjury,was essentiallya chargeof espionage.If the jury had not beensatisfied that Hiss committedespionage, they would have been obligedto acquit,regardless of what they believedabout his otherinvolvements with Communism.The paradoxis that those otherinvolvements, peripheral and indeedirrelevant as they were to the chargewhich Hiss had to meet in the United StatesDistrict Courtfor the SouthernDistrict of New York, are centralto the exonerationthat Hiss now seeksin whathe callsthe courtof public opinion. The publicimportance of the Hiss case,its symbolicrole in the politicallife of this decade,does not relateto whetherhe was justly convictedof the specificcharges of perjurybrought against him. It relatesto the much broaderissue whetherhe was or was not involvedin Communistactivity during his yearsof government service. If he was, he has told and is still telling lies of a signifi- cant magnitude.Indeed, their magnitudeis enhancedwith every retelling. If on the otherhand he was free from Communistin- volvement,then he has been the victim of a miscarriageof justice in a sensethat laymenas well as lawyerscan comprehend. We get little light on this largeraspect of the problemin Mr. Hiss's book. He is concerned,as we have seen, with establishing that he was wronglyconvicted of the specificcharges for which he was indicted. But he deals only in the most summaryand unsatisfactoryform with the evidence,apart from that concerned with espionageand with the extentand characterof his association with Chambers,tending to implicatehim in Communistactivity. One can, of course,say that Communistactivity as such is not a crime. But the point that Mr. Hiss seems to have missed in his book is that, even though it isn't a crime,Communist activity is the essenceof the real case againsthim for the precisereason that he has so hotly deniedthat there was any such activity. It is for this reasonthat his book is basicallyso unsatisfactory.Even if one acceptsa great deal of the very cogent case he makesout against Chambers'veracity, the root question of Hiss's complicitystill remains. On this view of the caseI believethat theremay be betterpros- pect for eventualclarification of the facts. If we lay to one side the questionof espionage,accepting arguendo the tale of two type- writersor some variationon it, and if we then examinethe rest May 1958] TWO TYPEWRITERS 43i of the evidence,it becomesapparent that there are a numberof loose ends in the case. I hastento say that these loose ends can't be simply picked up and tied togetheron the basis of what the presentrecord shows. What I do suggestis that it may be possible to obtainanswers to questionswhich the trialsleft up in the air. It would take anotherbook aboutthe Hiss case to canvassthese loose ends exhaustively;and thereprobably have been too many booksalready. But in the next few pagesI will brieflyrecapitulate severalkey points aboutwhich additionalevidence might be ob- tained,and will suggestthe means at hand to assemblethat evi- dence. I. The WareCell.-On a numberof differentoccasions Cham- bershas stated that Hiss was a memberof a Communistcell headed by HaroldWare which flourishedin Washingtonduring the early days of the Rooseveltadministration. Chambers first made this chargein an interviewwith Adolf Berle,then AssistantSecretary of State,in I939. He repeatedit to a State Departmentsecurity officerin I945 and in I946. And he assertedit publiclybefore the House Un-AmericanActivities Committee in I948. The question receivedvery little attentionat the Hiss trials,because it relatedto a period and to activitiesfairly remote from the chargesin the indictmentand because,at the time of the trials,it was purely a matter of Chambers'word against Hiss's, for reasonspresently to be considered. The compositionof the Ware cell, its relationto other Com- munist groupsin Washington,and the natureof the activitiesit carriedon are all matterswhich are far from clear. Chambers' statementsvaried from time to time,and eventhe veryfull account which he gives in Witness"leaves some questionsunresolved. In its mainoutlines, however, Chambers' story is this: In I933 Harold Ware, member of a devotedlyCommunist family, organizeda group of bright young governmentworkers in Washingtoninto an undergroundCommunist apparatus. The group'sfunctions included recruitingother governmentemployees into the Com- munist underground,placing Communistsin governmentposts, and influencingthe policiesof the Government.The group was headedby a "leadingcommittee," some or all of whose members servedas headsof cells. The leadingcommittee included Nathan Witt, Lee Pressman,John Abt, CharlesKramer, Henry H. Col- 33. CHAMBERS331-47. 432 STANFORD LAW REVIEW [Vol. Io: Page 409 lins, Jr.,Victor Perlo, and, until he was detachedfor otherwork, Alger Hiss. This group was in frequentcontact with J. Peters, the head of the undergroundsection of the AmericanCommunist party;and Peters'emissary to the groupwas WhittakerChambers. Sincethe end of the secondHiss trial,the existenceof the Ware group has been corroboratedby two witnesses. In August, I950, followinghis breakwith the AmericanLabor party, Lee Pressman testifiedthat he was recruitedinto the Communistparty by Harold Wareabout I934, andthat he wasa memberof a Communistgroup in Washingtonuntil he left governmentservice and returnedto New York "aboutthe latterpart of I935."34He testifiedthat the group was limited to people working at the time in the Agricul- tural AdjustmentAdministration and includedonly four (all of whom had been named by Chambersas being part of the larger group which he described): Abt, Kramer,Witt, and Pressman. Accordingto Pressman,the group met once or twice a month to readand discussMarxist literature which was broughtto them by Harold Ware. Occasionally,according to his recollection,J. Peterssat in with the group. He denied having met Whittaker Chambers.He had no firsthandknowledge of Alger Hiss as a Communist,or of any personsother than his colleaguesin the AAA whom he named. His accountis obviouslyat variancewith Chambers'in importantrespects. The secondwitness who has corroboratedthe existenceof the Ware group is NathanielWeyl, who testifiedin February,1952, during the SenateInternal Security Subcommittee's hearings on the Instituteof Pacific Relations.85Weyl's story is that Harold Ware recruitedhim into a Communistgroup in Washington aboutthe beginningof I934. At the time he was working as an economistfor the AAA. He named Hiss, Pressman,Kramer, Collins,Abt, Witt, and Perloas members.His periodof affiliation was about six months. During his affiliationChambers was not a member. Weyl was not asked why he discontinuedparticipa- tion in the group. Nor was he asked whether he saw Pressman and Hiss on the same occasions,a questionwhich might have helped resolvethe apparentinconsistency between the testimony of Pressmanand of Chambers.

34. Quoted in Hiss 394-95. For Pressman's full testimony, see Hearings Regard- ing Communism in the United States Government Before the House Committee on Un- American Activities, 81st Cong., 2d Sess., pt. 2, at 2843-2901 (1950). 35. Hearings, supra note 32, at 2795-2823. May I958] TWO TYPEWRITERS 433

On the vital issue of Hiss's complicitythe testimonyof Press- man and that of Chambersand of Weyl standin apparentbut not in necessaryconflict. Chambers says that Hiss was detachedfrom the Ware group when he transferredfrom the AAA to the Nye Committee,in the springof 1934. Pressmanstates that he was a memberof the groupstarting in early1934. It is conceivablethat by the time Pressmanjoined the group Hiss had alreadybeen detached,although it seemsunlikely that Pressman would not have known all the other group membersin the AAA. Closerques- tioningof both Pressmanand Weyl might resolvethe discrepancy or, on the other hand, might make it clear that it cannotbe re- solved. The presentstate of the recordon this importantphase of the problemis far from satisfactory,and certainlycannot be done justicemerely by sayingthat Pressmansaid Hiss wasn'tin, but Weyl said he was. The othersnamed as membersof the Ware group have con- sistentlyinvoked the fifth amendmentwhen questionedabout Communistaffiliations.86 If their testimonycan be compelled,we will be in a fairway to knowingthe truthabout Chambers' charges that Hiss was a Communistin the earlyI93o's.37 One word more aboutthe Ware group. On two occasionsin Witness,Chambers hints broadlythat thereis still anotherperson -not one of those named as a memberof the leading commit- tee-who knows aboutthe Waregroup and who knows "theper- tinent facts in the Hiss Case."38In a strikingpassage, Chambers saysthat he isn't going to name the man, but pleadswith him to tell the truth-for "thenation, his honor,my children."39It seems a little late in the day for Chambersto be overcomewith scruples aboutnaming names. Who is this man; has he ever been called on to testify; what has he said? 2. The Summerat Smithtown.-Chamberstestified that in the summerof I935 he and his wife renteda cottageat Smithtown,

36. See Hearings Regarding Communist Espionage in the United States Govern- ment Before the House Committeeon Un-AmericanActivities, 80th Cong., 2d Sess. (1948), for the testimony of Perlo (pp. 677-701), Collins (pp. 801-10), Kramer (pp. 818-35), Abt (pp. 1015-22), Pressman (pp. 1022-28), and Witt (pp. 1028-33). 37. Hiss obliquely recognizes the fact of the Ware group's existence, but relies on the post-trial testimony of Pressman to establish that he was not a member. Indeed, that testimony was one of the grounds relied on in his motion for new trial. See note 8 supra. The motion was filed just before Weyl testified. Hiss concedes that Weyl's testimony "supplied an offset" to that of Pressman, but implies that Weyl's motive was publicity. Hiss 308 n.6. 38. CHAMBERS347, 434. 39. Id. at 434. 434 STANFORD LAW REVIEW [Vol. I1: Page 409

Pennsylvania,together with a fellow Communistnamed Maxim Lieber,and that Mrs. Hiss visited them there for a week or ten days. The Hisses denied it. Chambers'landlord, a Mr. Boucot, and Boucot'ssister, both of whom were on termsof greatneigh- borlinesswith their tenantsand lived only a shortdistance away, testifiedthat they had no recollectionof seeingeither Mr. or Mrs. Hiss, and thatthey could not haveavoided meeting them had they been there any length of time. Indeed, Chamberstestified that he believedthat Mr. Boucothad met both Mr. and Mrs.Hiss. The Hissesmight be thoughtto have had somewhatthe better of this skirmish. But the mattercan hardlybe consideredsettled, in view of the fact that the only other allegedeyewitness, Maxim Lieber,was not calledas a witnessby eitherthe prosecutionor the defense. In his book Chamberstakes the bull by the horns and says: "Thoughhe [Lieber]was available,and probablyin New York during both Hiss trials,the Hiss defensenever called him to the stand."40This is gamesmanshipat its best. Surelythe prose- cutionmust bear predominant responsibility for not callingLieber. If his testimonyhad been that the Hisseswere there,that would have been better corroborationof Chambersthan anything else that was broughtforth at the trial. If his testimonyhad been that theywere not there,the prosecutionwould have been most derelict in suppressingit. Perhapsa likelierpossibility than eitherwas that the prosecutiondetermined in advancethat Lieberwould in all likelihoodrefuse to testify on fifth amendmentgrounds. Lieber'stestimony would be a mostimportant piece of evidence, since it would provideproof or disproofin a sharplycontested instanceof the truth or falsity of Chambers'assertion and Hiss's denial of the continuingclose and friendly connectionbetween the two families.41 3. The Rug-Chamberstestified that late in 1936,on the in- structionsof his superiorin the Sovietespionage apparatus, Colonel Bykov,he orderedthrough Professor Schapiro of New YorkUni- versity,a close friend and an authorityon art history,four costly Orientalrugs to be given to Hiss and three othersas gifts from "the gratefulSoviet people."42 Chambers directed the rugs to be

40. Id. at 377. 41. Although Hiss mentions the Smithtown matter, and relies on the testimony of Mr. Boucot and his sister to support his denial of Chambers'assertion, Hiss 231, 334, he does not mention Maxim Lieber. 42. CHAMBERS416. May 1958] TWO TYPEWRITERS 435 sent to GeorgeSilverman, a fellow Communistin Washington.'3 Chambersthen had Silvermanbring Hiss's rug to a restaurant on the Washington-Baltimoreroad, where Chambers,who was waiting there with Hiss, transferredit from Silverman'scar to Hiss's,without the one seeingthe other. Hiss, on the other hand, testifiedthat he receiveda rug from Chambersin the springof I936,more or less as partpayment for the rent on Hiss'sapartment where the Chamberseshad lived for a coupleof monthsin 1935. Hiss'sversion tends to be corroborated by the testimonyof his ex-maid,who rememberedseeing the rug on the floorof the house in which the Hisses lived in the spring of I936and which they vacatedon June15, I936. Chambers'story is corroboratedby the testimonyand records of the rug dealerfrom whom Schapiroordered the rugs to this extent:the dealerverified that the rugs were orderedsent to Schapirowhen Chamberssaid they were,and Schapirotestified that they were shipped,as Cham- berssaid they had been,to GeorgeSilverman." Neither the dealer nor ProfessorSchapiro was, of course,in a positionto say what had subsequentlybecome of the rugs. The questionis an importantone. If Chambersis right, then there was certainlyclose contact,most likely of a conspiratorial nature,between him and Hiss at a time when, accordingto Hiss, theirformer casual relationship had long since been brokenoff.4' If Hiss is right on this issue,as to which Chamberstestified in such circumstantialdetail, then Chambers'credibility diminishes to the vanishingpoint. Silvermanwas not producedas a witnessand examinedabout the incidenton the Baltimoreroad.46 The Hiss rug itself was not producedand the rug dealerwas therefore not givenan opportunity 43. See note 46 infra. 44. According to Chambers,the other rugs were given to Silverman, to Harry Dexter White, and to Henry Julian Wadleigh. CHAMBERS415-17. Silverman was not called to testify at Hiss's trials; White was dead; Wadleigh, who admitted stealing state department documents for the Communists, testified that he had received such a rug. Transcript of Record, p. 1130. 45. Hiss was charged with perjuryfor denying that he had seen Chambersafter Janu- ary 1, 1937. The chronology of the rug incident is such that, if Chambersis believed, Hiss could not have received the rug before January1, 1937. 46. Silverman had been named as a Communist and a participant in espionage by Elizabeth Bentley in 1948. Hearings, supra note 36, at 517. He appearedbefore the House Un-American Activities Committee, denied the espionage charge, but refused to answer most questions on fifth amendment grounds. Id. at 835-50. It is a matter for conjecture why the Governmentdid not call him to testify at the Hiss trials. Two other witnesses who might have been expected to invoke the fifth amendment and in fact did so were called. were William They Rosen, the transfereeof Hiss's Ford car, and Felix Inslerman,the alleged photographerof the purloined documents. 436 STANFORDLAW REVIEW [Vol.io: Page409 to say whetherit was the one which he sentto MeyerSchapiro on December29, 936, some monthsafter the Hissesinsisted they re- ceivedit. The prosecutormade a greatpoint, in his summation,of the defense'sfailure to producethe rug for the dealer'sinspection; but it seemsequally remarkable that the prosecutiondid not ask the defense to do so.47 4. TimothyHobson.-If the relationshipbetween the Hisses and the Chamberseswas as close as Chambershas made it out to be, and if it continuedas long as he saidit did (almostfour years), thereexists a witnesswhose testimony is of the greatestimportance. That is Timothy Hobson,Mrs. Hiss's son by an earliermarriage. He was eight yearsold when Hiss and Chambersfirst met and twelve when, accordingto Chambers,the final breakcame. I do not for a momentsuggest that if Hiss and Chamberswere engaged in an espionageconspiracy Timothy would have known aboutit. Butif the Hissesand the Chamberseswere such close friends, if they visitedback and forth, if they took trips together,and if, finally, Chambersregularly turned up on Hiss's doorstepto receivethe documents,it is almost inconceivablethat Timothy should not haveremembered him, andremembered the frequencyof his visits. Did Timothy Hobson remember? We do not know. The House Un-AmericanActivities Committee would have liked to talk to him, at the time Chambers'charges were first made. It becameclear that a difficultfamily situationwas involved,and that Hobson,now twenty-two,was to someextent estranged from his stepfather,or, at any rate,was not at his beck and call. The matterwas not pursued.48 We do not know whetheranyone-the Committee,the grand jury,the FBI, the prosecution,the defense-questionedTimothy Hobsonin private.The publicrecord does not show. Again, testi- mony that couldgo a long way to convictor to acquitin the court of public opinion.49 III The four examplesof loose ends just describedall illustrate vividly the truth of the propositionwith which we startedthis 47. Hiss says that the prosecutor"must have known that he could have had the rug for the asking." Hiss 337. That is reasonableenough, as far as it goes, but why did the defense wait for the prosecutorto ask? 48. Hearings, supra note 36, at 942-44. 49. Hiss asserts that "Timothy never saw him [Chambers] (or his wife) except dur- ing their brief stay at P Street [in the spring of 1935] while waiting for their goods to arrive." Hiss 282. As indicated in the text, there is no support in any public record for this assertion. May I958] TWO TYPEWRITERS 437 discussionof the Hiss case: "Thetrial . . . is not an investigative, but a demonstrativeproceeding." For many reasons-reasonsof remoteness,reasons of trial tactics,reasons of time and expense- all the evidencebearing on the ultimate issue of Alger Hiss's alleged complicityin clandestineCommunist activity was not broughtout at the trials.Underlying these reasons was a morefun- damentalone: lack of judicialpower to compeltestimony in the face of a plea of the privilege against self-incrimination.That reason,which existed at the time of the trials,no longer exists. In I954 Congresspassed an immunityact, under whose provisions a witness may be compelledto testify about "nationalsecurity" mattersbefore a congressionalcommittee as well as beforea federal grand jury and in federal litigation,in exchangefor immunity from prosecution"for or on accountof any transaction,matter, or thing concerningwhich he is so compelled... to testify or produce evidence...."50 Opinionsmay and do differon whetherthere are any circum- stancesin which a witness'stestimony should be so compelled.5 Even if the constitutionalityof the procedureis eventuallyvindi- catedin toto,52 doubtspersist as to its wisdom. But it can be argued thatif thereis any situationwhich justifiesoverriding the privilege againstself-incrimination in favorof compellingthe testimonyof reluctantwitnesses, the presentposture of the Hiss case presents thatsituation. Here is a causecelebre of the firstmagnitude, whose political repercussionsfar transcendthe immediateissues deter- mined by Hiss's perjuryconviction. Yet many of the facts on whose assumedexistence weighty judgments of publicpolicy have been made remain in doubt. The people who have knowledge

50. 68 STAT.745 (1954), 18 U.S.C. § 3486 (Supp. III, 1956). 51. See Ullmann v. United States, 350 U.S. 422, 440-55 (1956) (dissenting opinion). 52. The immunity provision with respect to testimony before grand juries was sus- tained in Ullmann v. United States, supra note 51. There is a substantialquestion, how- ever, about the constitutionalityof the provision relating to congressionalcommittees. Un- like the grand jury provision, the procedure for compelling testimony before a congres- sional committee requires the "approval"of the U.S. district court for the district where the hearing is taking place. This provision is thought to impose a nonjudicial function on article III courts, which are constitutionally incapable of exercising such functions. See Rogge, The New Federal Immunity Act and the Judicial Function, 45 CALIF. L. REV.109 (1957). However, this argument overlooks the fact that the District Court for the District of Columbia is capable of receiving nonarticle III functions, see O'Donoghue v. United States, 289 U.S. 516, 545-46 (1933); Keller v. Potomac Electric Power Co., 261 U.S. 428, 442-43 (1923), that most congressionalhearings take place in the District, that Congress can take care that litigation about the immunity act is confined to the District, and that it is doubtful whether a witness, summoned to testify in the District, would have to attack standing the constitutionalityof the statute as applied to courts outside the District. See gen- erally HART & WECHSLER, THE FEDERAL COURTS AND THEFEDERAL SYSTEM 156-92 (1953). 438 STANFORD LAW REVIEW [Vol. Io: Page 409 of the true facts are in no real dangerof prosecution.The trans- actionsin questionoccurred twenty years ago. It is hardto imagine how a grant of immunitycould impairthe prosecutorialwork of the JusticeDepartment. Nor is any legitimate interest of the potentialwitnesses in jeopardy.They will, it is true, be exposed to infamyif theirtestimony establishes complicity in underground Communistoperations. But that, as the SupremeCourt held in Ull- mann v. UnitedStates, 3 is not an interestwhich the fifth amend- mentprotects. Under the circumstances,the privilegeagainst self- incriminationshould not bar their interrogation.Granted the premise,embodied in the immunity act, that there are circum- stancesin whichit is desirableto exchangeimmunity for testimony, is this not an appropriateoccasion for doing so? Proponentsof the unlimitedveracity of WhittakerChambers as a witness to acts of betrayalshould welcome the opportunity to includein the publicrecord the corroborationof his narrative that has, up till now, largelybeen lacking. Equally,those who still believe that Alger Hiss was the victim of a miscarriageof justice5should be glad to see Chambers'story put to the kind of test that it has not yet received.But more than to eitherof these two committedviewpoints about the Hiss case, a thoroughex- posureof the still-cloudedfacts of the caseshould appealto those who believethat a full and informedawareness of the dangersof the Communistconspiracy, past and present,is not inconsistent with fairnessto individualsaccused of complicityin that con- spiracy. While I believethat a strongcase can be madefor the desira- bility of using the immunity act to compel hitherto withheld testimonyabout the Hiss case, I hesitateto suggestyet another congressionalinvestigation. The problemis that thereis no other feasiblemechanism. Inquisition by a grandjury would not serve the interestof making the facts public. There is nothing left to litigate,and even if therewere, we would still be faced with the limitationsof a procedurethat is demonstrativerather than in- vestigative. In saying that a congressionalinvestigation is the obviousmechanism, I do not mean to suggestthat the procedure

53. 350 U.S. 422 (1956). 54. See, e.g., Cook, Hiss, New Perspectiveson the Strangest Case of Our Time, 185 THE NATION 142 (1957). By the expedients of (1) weighing as a thirteenth juror the evi- dence adduced at the trials and (2) accepting as data the surmises contained in the motion for new trial Mr. Cook has no difficulty in concluding that Hiss was unjustly convicted, May 1958] TWO TYPEWRITERS 439 has no shortcomings.The historyof committeeaction since the end of WorldWar II doesnot, to put it mildly,suggest that either fairnessor competenceare values that are recognizedwith any degreeof uniformity.It would be preferable,if it were possible, to havean investigationof this magnitudeand this delicacyunder- taken by a group of eminent citizens drawn from government and privatelife, somewhatalong the lines of a BritishRoyal Com- mission,but armedby Congresswith full powersto compel the attendanceof witnesses,including the power containedin the ImmunityAct of I954. But althoughthat might be the more de- sirablecourse, it is probablyimpracticable at this time. And the problemis not one for which time will stand still. The people who know the facts aboutthe Hiss caseare, by now, middle-aged or older. If we are ever to see the loose ends tied up, it will have to be done soon. The most practicableapproach would probablybe the creation of a selectcommittee of both Housesto re-examinethe testimony in the Hiss case,as well as othercases involving disputed questions of fact aboutthe extent and natureof Communistinfiltration in the Government.Such a committeewould haveto be chosenwith great care so as to avoid the pitfalls of a predeterminedposition or of a dispositionto justifyeverything that has been done in the past. The problemsof its compositionwould be great. The prob- lems of staffingsuch a committeewould also not be easy. There would be the questionof weighingthe worthof expertnessagainst the value of the uncommittedmind. It would be essentialto get the servicesof a distinguishedand impartiallawyer to act as coun- sel, both for his own contributionand for the tone he could be expectedto set. The committee'sagenda with respectto the Hiss case should include two generaltopics which I have referredto as "the tale of two typewriters"and "the loose ends." Whateverelse may be saidabout Mr. Lane's motion for a new trial,it has certainlyraised questionswhich deservemore definitiveanswers than have yet been forthcoming.It may be questionablewhether the battleof expertscan be expectedto shed much morelight, but the problem of 230099'sprovenance should certainlybe investigatedfurther. The factsthat Mr.Lane was unableto secureby voluntarycoopera- tion shouldbe broughtout undersubpoena. But, even if the com- mitteeshould be ableto establishthat 230099is not the typewriter 44° STANFORD LAW REVIEW [Vol. io: Page 49 which Mr. Fanslergave to the Hisses,it would be wrong,for the reasonsI have suggested,to concludethat Hiss is to be absolved of all complicityin Communistactivity. So, in any event, the inquiry should also extend to the loose ends. Each of the personsnamed by Chambersas a memberof the Ware group should be requiredto tell what he knows. Maxim Liebershould be requiredto say whethereither Alger or Priscilla Hiss visited the Chambersesat Smithtown. The rug should be orderedproduced and everyeffort made, throughthe rug dealer who testifiedat the trial, to determinewhether it is one of the rugsordered on Chambers'behalf by ProfessorSchapiro. Timothy Hobson should be examinedon his recollectionof Mr. and Mrs. Chambersand of the extent and durationof their contactwith the Hisses. And, surely,Chambers should be requiredto divulge the name of the man who "knowsthe pertinentfacts in the Hiss case,"so that he can be examinedabout those facts. Not until thesepossibilities, and others,have been exhaustedwill we be able to say with any confidencethat the caseof Alger Hiss has ceased to be, as Lord Jowittput it, "strange." It remainsto ask whetherthe game is worth the candle. Per- haps it is not. Perhapswe would do betterto forgo knowledge in favorof repose.Hiss has had his dayin court. Societyowes him nothing more. Does societyowe itself anythingmore? Does it owe itself the whole truth,if the whole truth can be ascertained (can it everbe ascertained?)? Is the dislocationof still otherlives a price we should be willing to pay for more nearly complete knowledge? I cannotanswer these questionsto my own satisfac- tion. But one thing is clearto me and,I hope,to the reader.If we now close the books on the Hiss case, it must be with the con- sciousnessthat we have stoppedfar shortof even as imperfectan approximationof "truth"as the processesof law permit.