Respondent was charged with various sexual offenses against his
minor daughter. The matter was referred to the Children and Youth
Services (CYS), a protective service agency established by
Pennsylvania to investigate cases of suspected child mistreatment
and neglect. During pretrial discovery, respondent served CYS with
a subpoena, seeking access to the records related to the immediate
charges, as well as certain earlier records compiled when CYS
investigated a separate report that respondent's children were
being abused. CYS refused to comply with the subpoena, claiming
that the records were privileged under a Pennsylvania statute which
provides that all CYS records must be kept confidential, subject to
specified exceptions. One of the exceptions is that CYS may
disclose reports to a "court of competent jurisdiction pursuant to
a court order." At an in-chambers hearing in the trial court,
respondent argued that he was entitled to the information because
the CYS file might contain the names of favorable witnesses, as
well as other unspecified exculpatory evidence. Although the trial
judge did not examine the entire CYS file, he refused to order
disclosure. At the trial, which resulted in respondent's conviction
by a jury, the main witness against him was his daughter, who was
cross-examined at length by defense counsel. On appeal, the
Pennsylvania Superior Court held that the failure to disclose the
daughter's statements contained in the CYS file violated the
Confrontation Clause of the Sixth Amendment. The court vacated the
conviction and remanded for further proceedings to determine
whether a new trial should be granted. On the State's appeal, the
Pennsylvania Supreme Court held that, by denying access to the CYS
file, the trial court order had violated both the Confrontation and
the Compulsory Process Clauses of the Sixth Amendment, and that the
conviction must be vacated and the case remanded to determine if a
new trial was necessary. The court concluded that defense counsel
was entitled to review the entire file for any useful evidence.
Held: The judgment is affirmed in part and reversed in
part, and the case is remanded.
509 Pa. 357,
502
A.2d 148, affirmed in part, reversed in part, and remanded.
JUSTICE POWELL delivered the opinion of the Court as to Parts I,
II, III-B, III-C, and IV, concluding that:
Page 480 U. S. 40
1. This Court does not lack jurisdiction on the ground that the
decision below is not a "final judgment or decree," as required by
28 U.S.C. §1257(3). Although this Court has no jurisdiction to
review an interlocutory judgment, jurisdiction is proper where a
federal claim has been finally decided, with further proceedings on
the merits in the state courts to come, but in which later review
of the federal issue cannot be had whatever the ultimate outcome of
the case. Here, the Sixth Amendment issue will not survive for this
Court to review, regardless of the outcome of the proceedings on
remand. The Sixth Amendment issue has been finally decided by the
highest court of Pennsylvania, and unless this Court reviews that
decision, the harm that the State seeks to avoid -- the disclosure
of the confidential file -- will occur regardless of the result on
remand. Pp.
480 U. S.
47-50.
2. Criminal defendants have the right under the Compulsory
Process Clause to the government's assistance in compelling the
attendance of favorable witnesses at trial and the right to put
before a jury evidence that might influence the determination of
guilt. However, this Court has never held that the Clause
guarantees the right to discover the identity of witnesses, or to
require the government to produce exculpatory evidence. Instead,
claims such as respondent's traditionally have been evaluated under
the broader protections of the Due Process Clause of the Fourteenth
Amendment. Compulsory process provides no greater protections in
this area than those afforded by due process, and thus respondent's
claims more properly are considered by reference to due process.
Pp.
480 U. S.
55-56.
3. Under due process principles, the government has the
obligation to turn over evidence in its possession that is both
favorable to the accused and material to guilt or punishment.
Evidence is material only if there is a reasonable probability
that, had the evidence been disclosed, the result of the proceeding
would have been different. Although the public interest in
protecting sensitive information such as that in CYS records is
strong, this interest does not necessarily prevent disclosure in
all circumstances. Because the Pennsylvania Legislature
contemplated
some use of CYS records in judicial
proceedings, there is no reason to believe that relevant
information would not be disclosed when a court of competent
jurisdiction determined that the information was "material" to the
accused's defense. The Pennsylvania Supreme Court thus properly
ordered a remand for further proceedings. Respondent is entitled to
have the CYS file reviewed by the trial court to determine whether
it contains information that probably would have changed the
outcome of his trial. If it does, he must be given a new trial. If
the CYS file contains no such information, or if the nondisclosure
is harmless beyond a reasonable doubt, the trial court will be free
to reinstate the prior conviction. Pp.
480 U. S.
57-58.
Page 480 U. S. 41
4. The Pennsylvania Supreme Court erred in holding that defense
counsel must be allowed to examine the confidential information. A
defendant's right to discover exculpatory evidence does not include
the unsupervised authority to search the State's files and make the
determination as to the materiality of the information. Both
respondent's and the State's interests in ensuring a fair trial can
be protected fully by requiring that the CYS files be submitted
only to the trial court for
in camera review. To allow
full disclosure to defense counsel in this type of case would
sacrifice unnecessarily the State's compelling interest in
protecting its child abuse information. Pp.
480 U. S.
59-61.
JUSTICE POWELL, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and
JUSTICE O'CONNOR, concluded in Part III-A that the Pennsylvania
Supreme Court erred in holding that the failure to disclose the CYS
file violated the Confrontation Clause. There is no merit to
respondent's claim that, by denying him access to the information
necessary to prepare his defense, the trial court interfered with
his right of cross-examination guaranteed by the Clause. Respondent
argued that he could not effectively question his daughter because,
without the CYS material, he did not know which types of questions
would best expose the weaknesses in her testimony. However, the
Confrontation Clause is not a constitutionally compelled rule of
pretrial discovery. The right of confrontation is a
trial
right, guaranteeing an
opportunity for effective
cross-examination, not cross-examination that is effective in
whatever way and to whatever extent the defense might wish. Pp.
480 U. S.
51-54.
JUSTICE BLACKMUN concluded that the Confrontation Clause may be
relevant to limitations placed on a defendant's pretrial discovery.
There may well be a confrontation violation if, as here, a
defendant is denied pretrial access to information that would make
possible effective cross-examination of a crucial prosecution
witness. A State cannot avoid Confrontation Clause problems simply
by deciding to hinder the defendant's right to effective
cross-examination, on the basis of a desire to protect the
confidentiality interests of a particular class of individuals at
the pretrial, rather than at the trial, stage. However, the
procedure the Court has set out for the lower court to follow on
remand is adequate to address any confrontation problem. Pp.
480 U. S.
61-66.
POWELL, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II, III-B, III-C,
and IV, in which REHNQUIST, C. J., and WHITE, BLACKMUN, and
O'CONNOR, JJ., joined, and an opinion with respect to Part III-A,
in which REHNQUIST, C.J., and WHITE and O'CONNOR, JJ., joined.
BLACKMUN, J., filed an opinion concurring in part and concurring in
the judgment,
post, p.
480 U. S. 61.
BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J.,
joined,
Page 480 U. S. 42
post, p.
480 U. S. 66.
STEVENS, J., filed a dissenting opinion, in which BRENNAN,
MARSHALL, and SCALIA, JJ., joined,
post, p.
480 U. S.
72.
JUSTICE POWELL announced the judgment of the Court and delivered
the opinion of the Court with respect to Parts I, II, III-B, III-C,
and IV, and an opinion with respect to Part III-A, in which THE
CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR join.
The question presented in this case is whether and to what
extent a State's interest in the confidentiality of its
investigative
Page 480 U. S. 43
files concerning child abuse must yield to a criminal
defendant's Sixth and Fourteenth Amendment right to discover
favorable evidence.
I
As part of its efforts to combat child abuse, the Commonwealth
of Pennsylvania has established Children and Youth Services (CYS),
a protective service agency charged with investigating cases of
suspected mistreatment and neglect. In 1979, respondent George
Ritchie was charged with rape, involuntary deviate sexual
intercourse, incest, and corruption of a minor. The victim of the
alleged attacks was his 13-year-old daughter, who claimed that she
had been assaulted by Ritchie two or three times per week during
the previous four years. The girl reported the incidents to the
police, and the matter then was referred to the CYS.
During pretrial discovery, Ritchie served CYS with a subpoena,
seeking access to the records concerning the daughter. Ritchie
requested disclosure of the file related to the immediate charges,
as well as certain records that he claimed were compiled in 1978,
when CYS investigated a separate report by an unidentified source
that Ritchie's children were being abused. [
Footnote 1] CYS refused to comply with the subpoena,
claiming that the records were privileged under Pennsylvania law.
The relevant statute provides that all reports and other
information obtained in the course of a CYS investigation must be
kept confidential, subject to 11 specific exceptions. [
Footnote 2] One of those exceptions is
that the agency may
Page 480 U. S. 44
disclose the reports to a "court of competent jurisdiction
pursuant to a court order." Pa.Stat. Ann., Tit. 11, §2215(a)(5)
(Purdon Supp. 1986).
Ritchie moved to have CYS sanctioned for failing to honor the
subpoena, and the trial court held a hearing on the motion in
chambers. Ritchie argued that he was entitled to the information
because the file might contain the names of favorable witnesses, as
well as other unspecified exculpatory evidence. He also requested
disclosure of a medical report that he believed was compiled during
the 1978 CYS investigation. Although the trial judge acknowledged
that he had not examined the entire CYS file, he accepted a CYS
representative's assertion that there was no medical report in the
record. [
Footnote 3] The judge
then denied the motion and refused to order CYS to disclose the
files. [
Footnote 4]
See App. 72a.
At trial, the main witness against Ritchie was his daughter. In
an attempt to rebut her testimony, defense counsel
Page 480 U. S. 45
cross-examined the girl at length, questioning her on all
aspects of the alleged attacks and her reasons for not reporting
the incidents sooner. Except for routine evidentiary rulings, the
trial judge placed no limitation on the scope of cross-examination.
At the close of trial, Ritchie was convicted by a jury on all
counts, and the judge sentenced him to 3 to 10 years in prison.
On appeal to the Pennsylvania Superior Court, Ritchie claimed,
inter alia, that the failure to disclose the contents of
the CYS file violated the Confrontation Clause of the Sixth
Amendment, as applied to the States through the Due Process Clause
of the Fourteenth Amendment. [
Footnote 5] The court agreed that there had been a
constitutional violation, and accordingly vacated the conviction
and remanded for further proceedings. 324 Pa. Super. 557,
472
A.2d 220 (1984). The Superior Court ruled, however, that the
right of confrontation did not entitle Ritchie to the full
disclosure that he sought. It held that, on remand, the trial judge
first was to examine the confidential material
in camera,
and release only the verbatim statements made by the daughter to
the CYS counselor. But the full record then was to be made
available to Ritchie's lawyer for the limited purpose of allowing
him to argue the relevance of the statements. The court stated that
the prosecutor also should be allowed to argue that the failure to
disclose the statements was harmless error. If the trial judge
determined that the lack of information was prejudicial,
Page 480 U. S. 46
Ritchie would be entitled to a new trial.
Id. at
567-568, 472 A.2d at 226.
On appeal by the Commonwealth, the Supreme Court of Pennsylvania
agreed that the conviction must be vacated and the case remanded to
determine if a new trial is necessary. 509 Pa. 357,
502 A.2d
148 (1985). But the court did not agree that the search for
material evidence must be limited to the daughter's verbatim
statements. Rather, it concluded that Ritchie, through his lawyer,
is entitled to review the entire file to search for any useful
evidence. [
Footnote 6] It
stated:
"When materials gathered become an arrow of inculpation, the
person inculpated has a fundamental constitutional right to examine
the provenance of the arrow and he who aims it."
Id. at 367, 502 A.2d at 153. The Pennsylvania Court
concluded that, by denying access to the file, the trial court
order had violated both the Confrontation Clause and the Compulsory
Process Clause. The court was unpersuaded by the Commonwealth's
argument that the trial judge already had examined the file and
determined that it contained no relevant information. It ruled that
the constitutional infirmity in the trial court's order was that
Ritchie was unlawfully denied the opportunity to have the records
reviewed by "the eyes and the perspective of an advocate," who may
see relevance in places that a neutral judge would not.
Ibid.
In light of the substantial and conflicting interests held by
the Commonwealth and Ritchie, we granted certiorari. 476 U.S. 1139
(1986). We now affirm in part, reverse in part, and remand for
proceedings not inconsistent with this opinion.
Page 480 U. S. 47
II
Before turning to the constitutional questions, we first must
address Ritchie's claim that the Court lacks jurisdiction, because
the decision below is not a "final judgment or decree."
See 28 U.S.C. §1257(3);
Market Street R. Co. v.
Railroad Comm'n of California, 324 U.
S. 548,
324 U. S. 551
(1945). Normally, the finality doctrine contained in §1257(3) is
not satisfied if the state courts still must conduct further
substantive proceedings before the rights of the parties as to the
federal issues are resolved.
Ibid.; Radio Station WOW, Inc. v.
Johnson, 326 U. S. 120,
326 U. S.
123-127 (1945). Ritchie argues that, under this
standard, the case is not final, because there are several more
proceedings scheduled in the Pennsylvania courts: at a minimum,
there will be an
in camera review of the file, and the
parties will present arguments on whether the lack of disclosure
was prejudicial; after that, there could be a new trial on the
merits. Ritchie claims that, because the Sixth Amendment issue may
become moot at either of these stages, we should decline review
until these further proceedings are completed.
Although it is true that this Court is without jurisdiction to
review an interlocutory judgment, it also is true that the
principles of finality have not been construed rigidly. As we
recognized in
Cox Broadcasting Corp. v. Cohn, 420 U.
S. 469 (1975), there are at least four categories of
cases in which jurisdiction is proper even when there are further
proceedings anticipated in the state court. One of these exceptions
states that the Court may consider cases:
"[W]here the federal claim has been finally decided, with
further proceedings on the merits in the state courts to come, but
in which later review of the federal issue cannot be had, whatever
the ultimate outcome of the case. . . . [I]n these cases, if the
party seeking interim review ultimately prevails on the merits, the
federal issue will be mooted; if he were to lose on the merits,
however, the
Page 480 U. S. 48
governing state law would not permit him again to present his
federal claims for review."
Id. at
420 U. S.
481.
We find that the case before us satisfies this standard, because
the Sixth Amendment issue will not survive for this Court to
review, regardless of the outcome of the proceedings on remand. If
the trial court decides that the CYS files do not contain relevant
information, or that the nondisclosure was harmless, the
Commonwealth will have prevailed, and will have no basis to seek
review. In this situation Ritchie's conviction will be reinstated,
and the issue of whether defense counsel should have been given
access will be moot. Should Ritchie appeal the trial court's
decision, the Commonwealth's only method for preserving the
constitutional issue would be by cross-claims. Thus, the only way
that this Court will be able to reach the Sixth Amendment issue is
if Ritchie eventually files a petition for certiorari on the trial
court's adverse ruling, and the Commonwealth files a
cross-petition. When a case is in this procedural posture, we have
considered it sufficiently final to justify review.
See, e.g.,
New York v. Quarles, 467 U. S. 649,
467 U. S. 651,
n. 1 (1984);
South Dakota v. Neville, 459 U.
S. 553,
459 U. S. 558,
n. 6 (1983).
Alternatively, if Ritchie is found to have been prejudiced by
the withholding, and is granted a new trial, the Commonwealth still
will be unable to obtain a ruling from this Court. On retrial,
Ritchie either will be convicted, in which case the Commonwealth's
ability to obtain review again will rest on Ritchie's willingness
to appeal, or he will be acquitted, in which case the Commonwealth
will be barred from seeking review by the Double Jeopardy Clause.
See ibid.; California v. Stewart, 384 U.
S. 436,
384 U. S. 498,
n. 71 (1966) (decided with
Miranda v. Arizona,
384 U. S. 436
(1966)). Therefore, if this Court does not consider the
constitutional claims now, there may well be no opportunity to do
so in the future. [
Footnote
7]
Page 480 U. S. 49
The Sixth Amendment issue has been finally decided by the
highest court of Pennsylvania, and unless we review that decision,
the harm that the Commonwealth seeks to avoid -- the disclosure of
the entire confidential file -- will occur regardless of the result
on remand. We thus cannot agree with the suggestion in JUSTICE
STEVENS' dissent that, if we were to dismiss this case and it was
resolved on other grounds after disclosure of the file, "the
Commonwealth would not have been harmed."
Post at
480 U. S. 74.
This hardly could be true, because of the acknowledged public
interest in ensuring the confidentiality of CYS records.
See n 17,
infra. Although this consideration is not dispositive, we
have noted that
"statutorily created finality requirements
Page 480 U. S. 50
should, if possible, be construed so as not to cause crucial
collateral claims to be lost and potentially irreparable injuries
to be suffered."
Mathews v. Eldridge, 424 U. S. 319,
424 U. S. 331,
n. 11 (1976). We therefore reject Ritchie's claim that the Court
lacks jurisdiction, and turn to the merits of the case before us.
[
Footnote 8]
Page 480 U. S. 51
III
The Pennsylvania Supreme Court held that Ritchie, through his
lawyer, has the right to examine the full contents of the CYS
records. The court found that this right of access is required by
both the Confrontation Clause and the Compulsory Process Clause. We
discuss these constitutional provisions in turn.
A
The Confrontation Clause provides two types of protections for a
criminal defendant: the right physically to face those who testify
against him and the right to conduct cross-examination.
Delaware v. Fensterer, 474 U. S. 15,
474 U. S. 18-19
(1985) (per curiam). Ritchie does not allege a violation of the
former right. He was not excluded from any part of the trial, nor
did the prosecutor improperly introduce out-of-court statements as
substantive evidence, thereby depriving Ritchie of the right to
"confront" the declarant.
See Ohio v. Roberts,
448 U. S. 56
(1980).
Cf. United States v. Inadi, 475 U.
S. 387 (1986). Instead, Ritchie claims that, by denying
him access to the information necessary to prepare his defense, the
trial court interfered with his right of cross-examination.
Ritchie argues that he could not effectively question his
daughter because, without the CYS material, he did not know which
types of questions would best expose the weaknesses in her
testimony. Had the files been disclosed, Ritchie argues that he
might have been able to show that the daughter made statements to
the CYS counselor that were inconsistent with her trial statements,
or perhaps to reveal that the girl acted with an improper motive.
Of course, the right to cross-examine includes the opportunity to
show that a witness is biased, or that the testimony is exaggerated
or
Page 480 U. S. 52
unbelievable.
United States v. Abel, 469 U. S.
45,
469 U. S. 50
(1984);
Davis v. Alaska, 415 U. S. 308,
415 U. S. 316
(1974). Because this type of evidence can make the difference
between conviction and acquittal,
see Napue v. Illinois,
360 U. S. 264,
360 U. S. 269
(1959), Ritchie argues that the failure to disclose information
that might have made cross-examination more effective undermines
the Confrontation Clause's purpose of increasing the accuracy of
the truth-finding process at trial.
See United States v. Inadi,
supra, at
475 U. S.
396.
The Pennsylvania Supreme Court accepted this argument, relying
in part on our decision in
Davis v. Alaska, supra. In
Davis, the trial judge prohibited defense counsel from
questioning a witness about the latter's juvenile criminal record,
because a state statute made this information presumptively
confidential. We found that this restriction on cross-examination
violated the Confrontation Clause, despite Alaska's legitimate
interest in protecting the identity of juvenile offenders. 415 U.S.
at
415 U. S.
318-320. The Pennsylvania Supreme Court apparently
interpreted our decision in
Davis to mean that a statutory
privilege cannot be maintained when a defendant asserts a need,
prior to trial, for the protected information that might be used at
trial to impeach or otherwise undermine a witness' testimony.
See 509 Pa. at 365-367, 502 A.2d at 152-153.
If we were to accept this broad interpretation of
Davis, the effect would be to transform the Confrontation
Clause into a constitutionally compelled rule of pretrial
discovery. Nothing in the case law supports such a view. The
opinions of this Court show that the right to confrontation is a
trial right, designed to prevent improper restrictions on the types
of questions that defense counsel may ask during cross-examination.
See California v. Green, 399 U. S. 149,
399 U. S. 157
(1970) ("[I]t is this literal right to
confront' the witness at
the time of trial that forms the core of the values furthered by
the Confrontation Clause"); Barber v. Page, 390 U.
S. 719, 390 U. S. 725
(1968) ("The right to confrontation is basically a trial
Page 480 U. S. 53
right"). The ability to question adverse witnesses, however,
does not include the power to require the pretrial disclosure of
any and all information that might be useful in contradicting
unfavorable testimony [
Footnote
9] Normally the right to confront one's accusers is satisfied
if defense counsel receives wide latitude at trial to question
witnesses.
Delaware v. Fensterer, 474 U.S. at
474 U. S. 20. In
short, the Confrontation Clause only guarantees
"an
opportunity for effective cross-examination, not
cross-examination that is effective in whatever way, and to
whatever extent, the defense might wish."
Id. at
474 U. S. 20
(emphasis in original).
See also Ohio v. Roberts, supra,
at
448 U. S. 73, n.
12 (except in "extraordinary cases, no inquiry into
effectiveness' [of cross-examination] is required").
We reaffirmed this interpretation of the Confrontation Clause
last Term in
Delaware v. Fensterer, supra. In that case,
the defendant was convicted in part on the testimony of the State's
expert witness, who could not remember which scientific test he had
used to form his opinion. Although this inability to recall
frustrated defense counsel's efforts to discredit the testimony, we
held that there had been no Sixth Amendment violation. The Court
found that the right of confrontation was not implicated, "for the
trial court did not limit the scope or nature of defense counsel's
cross-examination in any way." 474 U.S. at
474 U. S. 19.
Fensterer was in full accord with our earlier decisions
that have upheld a Confrontation Clause infringement claim on this
issue only
Page 480 U. S. 54
when there was a specific statutory or court-imposed restriction
at trial on the scope of questioning. [
Footnote 10]
The lower court's reliance on
Davis v. Alaska therefore
is misplaced. There, the state court had prohibited defense counsel
from questioning the witness about his criminal record, even though
that evidence might have affected the witness' credibility. The
constitutional error in that case was
not that Alaska made
this information confidential; it was that the defendant was denied
the right
"to expose to the jury the facts from which jurors . . . could
appropriately draw inferences relating to the reliability of the
witness."
415 U.S. at
415 U. S. 318.
Similarly, in this case, the Confrontation Clause was not violated
by the withholding of the CYS file; it only would have been
impermissible for the judge to have prevented Ritchie's lawyer from
cross-examining the daughter. Because defense counsel was able to
cross-examine all of the trial witnesses fully, we find that the
Pennsylvania Supreme Court erred in holding that the failure to
disclose the CYS file violated the Confrontation Clause.
Page 480 U. S. 55
B
The Pennsylvania Supreme Court also suggested that the failure
to disclose the CYS file violated the Sixth Amendment's guarantee
of compulsory process. Ritchie asserts that the trial court's
ruling prevented him from learning the names of the "witnesses in
his favor," as well as other evidence that might be contained in
the file. Although the basis for the Pennsylvania Supreme Court's
ruling on this point is unclear, it apparently concluded that the
right of compulsory process includes the right to have the State's
assistance in uncovering arguably useful information, without
regard to the existence of a state-created restriction -- here, the
confidentiality of the files.
1
This Court has had little occasion to discuss the contours of
the Compulsory Process Clause. The first and most celebrated
analysis came from a Virginia federal court in 1807, during the
treason and misdemeanor trials of Aaron Burr. Chief Justice
Marshall, who presided as trial judge, ruled that Burr's compulsory
process rights entitled him to serve a subpoena on President
Jefferson, requesting the production of allegedly incriminating
evidence. [
Footnote 11]
United States v. Burr, 25 F. Cas. 30, 35 (No. 14,692d) (CC
Va. 1807). Despite the implications of the
Burr decision
for federal criminal procedure, the Compulsory Process Clause
rarely was a factor in this Court's decisions during the next 160
years. [
Footnote 12] More
recently,
Page 480 U. S. 56
however, the Court has articulated some of the specific rights
secured by this part of the Sixth Amendment. Our cases establish,
at a minimum, that criminal defendants have the right to the
government's assistance in compelling the attendance of favorable
witnesses at trial and the right to put before a jury evidence that
might influence the determination of guilt. [
Footnote 13]
This Court has never squarely held that the Compulsory Process
Clause guarantees the right to discover the identity of witnesses,
or to require the government to produce exculpatory evidence.
But cf. United States v. Nixon, 418 U.
S. 683, 709,
418 U. S. 711
(1974) (suggesting that the Clause may require the production of
evidence). Instead, the Court traditionally has evaluated claims
such as those raised by Ritchie under the broader protections of
the Due Process Clause of the Fourteenth Amendment.
See United
States v. Bagley, 473 U. S. 667
(1985);
Brady v. Maryland, 373 U. S.
83 (1963).
See also Wardius v. Oregon,
412 U. S. 470
(1973). Because the applicability of the Sixth Amendment to this
type of case is unsettled, and because our Fourteenth Amendment
precedents addressing the fundamental fairness of trials establish
a clear framework for review, we adopt a due process analysis for
purposes of this case. Although we conclude that compulsory process
provides no
greater protections in this area than those
afforded by due process, we need not decide today whether and how
the guarantees of the Compulsory Process Clause differ from those
of the Fourteenth Amendment. It is enough to conclude that, on
these facts, Ritchie's claims more properly are considered by
reference to due process.
Page 480 U. S. 57
2
It is well settled that the government has the obligation to
turn over evidence in its possession that is both favorable to the
accused and material to guilt or punishment.
United States v.
Agurs, 427 U. S. 97
(1976);
Brady v. Maryland, supra, at
373 U. S. 87.
Although courts have used different terminologies to define
"materiality," a majority of this Court has agreed,
"[e]vidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense,
the result of the proceeding would have been different. A
'reasonable probability' is a probability sufficient to undermine
confidence in the outcome."
United States v. Bagley, 473 U.S. at
473 U. S. 682
(opinion of BLACKMUN, J.);
see id. at
473 U. S. 685
(opinion of WHITE, J.).
At this stage, of course, it is impossible to say whether any
information in the CYS records may be relevant to Ritchie's claim
of innocence, because neither the prosecution nor defense counsel
has seen the information, and the trial judge acknowledged that he
had not reviewed the full file. The Commonwealth, however, argues
that no materiality inquiry is required, because a statute renders
the contents of the file privileged. Requiring disclosure here, it
is argued, would override the Commonwealth's compelling interest in
confidentiality on the mere speculation that the file "might" have
been useful to the defense.
Although we recognize that the public interest in protecting
this type of sensitive information is strong, we do not agree that
this interest necessarily prevents disclosure in all circumstances.
This is not a case where a state statute grants CYS the absolute
authority to shield its files from all eyes.
Cf. 42
Pa.Cons.Stat. §5945.1(b) (1982) (unqualified statutory privilege
for communications between sexual assault counselors and victims).
[
Footnote 14] Rather, the
Pennsylvania
Page 480 U. S. 58
law provides that the information shall be disclosed in certain
circumstances, including when CYS is directed to do so by court
order. Pa.Stat.Ann., Title 11, §2215(a)(5) (Purdon Supp. 1986).
Given that the Pennsylvania Legislature contemplated some use of
CYS records in judicial proceedings, we cannot conclude that the
statute prevents all disclosure in criminal prosecutions. In the
absence of any apparent state policy to the contrary, we therefore
have no reason to believe that relevant information would not be
disclosed when a court of competent jurisdiction determines that
the information is "material" to the defense of the accused.
We therefore affirm the decision of the Pennsylvania Supreme
Court to the extent it orders a remand for further proceedings.
Ritchie is entitled to have the CYS file reviewed by the trial
court to determine whether it contains information that probably
would have changed the outcome of his trial. If it does, he must be
given a new trial. If the records maintained by CYS contain no such
information, or if the nondisclosure was harmless beyond a
reasonable doubt, the lower court will be free to reinstate the
prior conviction. [
Footnote
15]
Page 480 U. S. 59
C
This ruling does not end our analysis, because the Pennsylvania
Supreme Court did more than simply remand. It also held that
defense counsel must be allowed to examine all of the confidential
information, both relevant and irrelevant, and present arguments in
favor of disclosure. The court apparently concluded that, whenever
a defendant alleges that protected evidence might be material, the
appropriate method of assessing this claim is to grant full access
to the disputed information, regardless of the State's interest in
confidentiality. We cannot agree.
A defendant's right to discover exculpatory evidence does not
include the unsupervised authority to search through the
Commonwealth's files.
See United States v. Bagley, supra,
at
473 U. S. 675;
United States v. Agurs, supra, at
427 U. S. 111.
Although the eye of an advocate may be helpful to a defendant in
ferreting out information,
Dennis v. United States,
384 U. S. 855,
384 U. S. 875
(1966), this Court has never held -- even in the absence of a
statute restricting disclosure -- that a defendant alone may make
the determination as to the materiality of the information. Settled
practice is to the contrary. In the typical case where a defendant
makes only a general request for exculpatory material under
Brady v. Maryland, 373 U. S. 83
(1963), it is the State that decides which information must be
disclosed. Unless defense counsel becomes aware that other
exculpatory evidence was withheld and brings it to the court's
attention, [
Footnote 16] the
prosecutor's decision on disclosure is final. Defense counsel has
no constitutional right to conduct his own search of the State's
files to argue relevance.
See Weatherford v. Bursey,
429 U. S. 545,
429 U. S. 559
(1977) ("There
Page 480 U. S. 60
is no general constitutional right to discovery in a criminal
case, and
Brady did not create one").
We find that Ritchie's interest (as well as that of the
Commonwealth) in ensuring a fair trial can be protected fully by
requiring that the CYS files be submitted only to the trial court
for
in camera review. Although this rule denies Ritchie
the benefits of an "advocate's eye," we note that the trial court's
discretion is not unbounded. If a defendant is aware of specific
information contained in the file (
e.g., the medical
report), he is free to request it directly from the court, and
argue in favor of its materiality. Moreover, the duty to disclose
is ongoing; information that may be deemed immaterial upon original
examination may become important as the proceedings progress, and
the court would be obligated to release information material to the
fairness of the trial.
To allow full disclosure to defense counsel in this type of case
would sacrifice unnecessarily the Commonwealth's compelling
interest in protecting its child abuse information. If the CYS
records were made available to defendants, even through counsel, it
could have a seriously adverse effect on Pennsylvania's efforts to
uncover and treat abuse. Child abuse is one of the most difficult
crimes to detect and prosecute, in large part, because there often
are no witnesses except the victim. A child's feelings of
vulnerability and guilt and his or her unwillingness to come
forward are particularly acute when the abuser is a parent. It
therefore is essential that the child have a state-designated
person to whom he may turn, and to do so with the assurance of
confidentiality. Relatives and neighbors who suspect abuse also
will be more willing to come forward if they know that their
identities will be protected. Recognizing this, ,the Commonwealth
-- like all other States [
Footnote 17] -- has made a commendable effort to assure
victims
Page 480 U. S. 61
and witnesses that they may speak to the CYS counselors without
fear of general disclosure. The Commonwealth's purpose would be
frustrated if this confidential material had to be disclosed upon
demand to a defendant charged with criminal child abuse, simply
because a trial court may not recognize exculpatory evidence.
Neither precedent nor common sense requires such a result.
IV
We agree that Ritchie is entitled to know whether the CYS file
contains information that may have changed the outcome of his
trial, had it been disclosed. Thus, we agree that a remand is
necessary. We disagree with the decision of the Pennsylvania
Supreme Court to the extent that it allows defense counsel access
to the CYS file. An
in camera review by the trial court
will serve Ritchie's interest without destroying the Commonwealth's
need to protect the confidentiality of those involved in child
abuse investigations. The judgment of the Pennsylvania Supreme
Court is affirmed in part and reversed in part, and the case is
remanded for further proceedings not inconsistent with this
opinion.
It is so ordered.
[
Footnote 1]
Although the 1978 investigation took place during the period
that the daughter claimed she was being molested, it is undisputed
that the daughter did not tell CYS about the assaults at that time.
No criminal charges were filed as a result of this earlier
investigation.
[
Footnote 2]
The statute provides in part:
"(a) Except as provided in section 14 [Pa.Stat.Ann., Tit. 11, §
2214 (Purdon Supp. 1986)], reports made pursuant to this act
including but not limited to report summaries of child abuse . . .
and written reports . . . as well as any other information
obtained, reports written or photographs or X-rays taken concerning
alleged instances of child abuse in the possession of the
department, a county children and youth social service agency or a
child protective service shall be confidential and shall only be
made available to:"
"
* * * *"
"(6) A court of competent jurisdiction pursuant to a court
order."
Pa.Stat.Ann., Tit. 11, § 2216(a) (Purdon Supp. 1986). At the
time of trial, the statute only provided five exceptions to the
general rule of confidentiality, including the exception for
court-ordered disclosure. The statute was amended in 1982 to
increase the number of exceptions. For example, the records now may
be revealed to law enforcement officials for use in criminal
investigations. § 2215(a)(9). But, the identity of a person who
reported the abuse or who cooperated in the investigation may not
be released if the disclosure would be detrimental to that person's
safety. § 2215(c).
[
Footnote 3]
The trial judge stated that he did not read "60 pages or more of
an extensive record." App. 72a. The judge had no knowledge of the
case before the pretrial hearing.
See id. at 68a.
[
Footnote 4]
There is no suggestion that the Commonwealth's prosecutor was
given access to the file at any point in the proceedings, or that
he was aware of its contents.
[
Footnote 5]
The Sixth Amendment of the United States Constitution protects
both the right of confrontation and the right of compulsory
process:
"In all criminal prosecutions, the accused shall enjoy the right
. . . to be confronted with the witnesses against him; [and] to
have compulsory process for obtaining witnesses in his favor."
Both Clauses are made obligatory on the States by the Fourteenth
Amendment.
Pointer v. Texas, 380 U.
S. 400,
380 U. S.
403-406 (1966) (Confrontation Clause);
Washington v.
Texas, 388 U. S. 14,
388 U. S. 17-19
(1967) (Compulsory Process Clause).
[
Footnote 6]
The court noted that the trial court should take "appropriate
steps" to guard against improper dissemination of the confidential
material, including, for example, "fashioning of appropriate
protective orders, or conducting certain proceedings
in
camera." 509 Pa. at 368, n. 16, 502 A.2d at 153, n. 16. These
steps were to be taken, however, subject to "the right of
[Ritchie], through his counsel, to gain access to the information."
Ibid.
[
Footnote 7]
As JUSTICE STEVENS' dissent points out,
post at
480 U. S. 74,
there is a third possibility. If the trial court finds prejudicial
error and orders a retrial, the Commonwealth may attempt to take an
immediate appeal of this order.
See Pa.Rule App.Proc.
311(a). JUSTICE STEVENS' dissent suggests that, because the
Commonwealth can raise the Sixth Amendment issue again in this
appeal, respect for the finality doctrine should lead us to
dismiss. But even if we were persuaded that an immediate appeal
would lie in this situation, it would not necessarily follow that
the constitutional issue will survive. The appellate court could
find that the failure to disclose was harmless, precluding further
review by the Commonwealth. Alternatively, the appellate court
could agree that the error was prejudicial, thus permitting the
Commonwealth to claim that the Sixth Amendment does not compel
disclosure. But as JUSTICE STEVENS' dissent recognizes, the
Pennsylvania courts already have considered and resolved this issue
in their earlier proceedings; if the Commonwealth were to raise it
again in a new set of appeals, the courts below would simply reject
the claim under the law-of-the-case doctrine. Law-of-the-case
principles are not a bar to this Court's jurisdiction, of course,
and thus JUSTICE STEVENS' dissent apparently would require the
Commonwealth to raise a fruitless Sixth Amendment claim in the
trial court, the Superior Court, and the Pennsylvania Supreme Court
still another time before we regrant certiorari on the question
that is now before us.
The goals of finality would be frustrated, rather than
furthered, by these wasteful and time-consuming procedures. Based
on the unusual facts of this case, the justifications for the
finality doctrine -- efficiency, judicial restraint, and
federalism,
see Radio Station WOW, Inc. v. Johnson,
326 U. S. 120,
326 U. S. 124
(1945);
post at
480 U. S. 74 --
would be ill-served by another round of litigation on an issue that
has been authoritatively decided by the highest state court.
[
Footnote 8]
Nothing in our decision in
United States v. Ryan,
402 U. S. 530
(1971), requires a different result. In that case, the respondent
was served with a subpoena requiring him to produce business
records for a grand jury. The District Court denied a motion to
quash, and respondent appealed. We concluded that the District
Court order was not appealable.
Id. at
402 U. S. 532.
We rejected the contention that immediate review was necessary to
avoid the harm of disclosing otherwise protected material, noting
that parties who face such an order have the option of making the
decision "final" simply by refusing to comply with the
subpoena.
Although there are similarities between this case and
Ryan, the analogy is incomplete. In
Ryan, the
Court was concerned about the "necessity for expedition in the
administration of the criminal law,"
id. at
402 U. S. 533,
an interest that would be undermined if all pretrial orders were
immediately appealable.
Ryan also rests on an implicit
assumption that, unless a party resisting discovery is willing to
risk being held in contempt, the significance of his claim is
insufficient to justify interrupting the ongoing proceedings. That
is not the situation before us. Here the trial already has taken
place, and the issue reviewed by the Commonwealth appellate courts.
The interests of judicial economy and the avoidance of delay,
rather than being hindered, would be best served by resolving the
issue.
Cf. Cox Broadcasting Corp. v. Cohn, 420 U.
S. 469;
420 U. S.
477-478 (1975) (exceptions to finality doctrine
justified in part by need to avoid economic waste and judicial
delay).
We also reject Ritchie's suggestion that we should dismiss this
action and allow the case to return to the trial court, so that the
Commonwealth can formally refuse to comply with the Pennsylvania
Supreme Court decision and be held in contempt. Here we are not
faced merely with an individual's assertion that a subpoena is
unduly burdensome, but with a holding of a State Supreme Court that
the legislative interest in confidentiality will not be given
effect. The Commonwealth's interest in immediate review of this
case is obvious and substantial. Contrary to JUSTICE STEVENS'
dissent, we do not think that the finality doctrine requires a new
round of litigation and appellate review simply to give the
Commonwealth "the chance to decide whether to comply with the
order."
Post at
480 U. S. 77.
See n 7,
supra. To prolong the proceedings on this basis would be
inconsistent with the "pragmatic" approach we normally have taken
to finality questions.
See generally Bradley v. Richmond School
Bd., 416 U. S. 696,
416 U. S.
722-723, n. 28 (1974) ("This Court has been inclined to
follow a
pragmatic approach' to the question of finality")
(citation omitted).
[
Footnote 9]
This is not to suggest, of course, that there are no protections
for pretrial discovery in criminal cases.
See discussion
in
480 U. S.
infra. We simply hold that, with respect to this issue,
the Confrontation Clause only protects a defendant's trial rights,
and does not compel the pretrial production of information that
might be useful in preparing for trial. Also, we hardly need say
that nothing in our opinion today is intended to alter a trial
judge's traditional power to control the scope of cross-examination
by prohibiting questions that are prejudicial, irrelevant, or
otherwise improper.
See Delaware v. Van Arsdall,
475 U. S. 673,
475 U. S. 678
(1986).
[
Footnote 10]
See, e.g., Delaware v. Van Arsdall, supra (denial of
right to cross-examine to show bias);
Davis v. Alaska,
415 U. S. 308
(1974);
Chambers v. Mississippi, 410 U.
S. 284 (1973) (denial of right to impeach own witness);
Smith v. Illinois, 390 U. S. 129
(1968) (denial of right to ask witness' real name and address at
trial);
Douglas v. Alabama, 380 U.
S. 415 (1965) (denial of right to cross-examine
codefendant). Moreover, the Court normally has refused to find a
Sixth Amendment violation when the asserted interference with
cross-examination did not occur at trial.
Compare McCray v.
Illinois, 386 U. S. 300,
386 U. S.
311-313 (1967) (no Confrontation Clause violation where
defendant was denied the chance to discover an informant's name at
pretrial hearing),
with Roviaro v. United States,
353 U. S. 53 (1957)
(on the facts presented, Government required to disclose
informant's name at trial).
See generally Westen, The
Compulsory Process Clause, 73 Mich.L.Rev. 71, 125-126 (1974) ("The
right of confrontation is exclusively a
trial right.' . . . It
does not . . . require the government to produce witnesses whose
statements are not used at trial, or to produce the underlying
information on which its witnesses base their testimony")
(footnotes omitted) (hereinafter Westen).
[
Footnote 11]
The evidence consisted of a letter that was sent to President
Jefferson by General James Wilkinson that allegedly showed that
Burr was planning to invade Mexico and set up a separate government
under his control. After being ordered to do so, Jefferson
eventually turned over an edited version of the letter. For an
excellent summary of the
Burr case and its implications
for compulsory process,
see Westen 101-108.
[
Footnote 12]
The pre-1967 cases that mention compulsory process do not
provide an extensive analysis of the Clause.
See Pate v.
Robinson, 383 U. S. 375,
383 U. S. 378,
n. 1 (1966);
Blackmer v. United States, 284 U.
S. 421,
284 U. S. 442
(1932);
United States v. Van Duzee, 140 U.
S. 169,
140 U. S. 173
(1891);
Ex parte Harding, 120 U.
S. 782 (1887).
See generally Westen 108, and n.
164.
[
Footnote 13]
See, e.g., Chambers v. Mississippi, supra; Cool v. United
States, 409 U. S. 100
(1972) (per curiam);
Washington v. Texas, 388 U. S.
14 (1967).
Cf. Webb v. Texas, 409 U. S.
95 (1972) (per curiam) (decision based on Due Process
Clause).
[
Footnote 14]
We express no opinion on whether the result in this case would
have been different if the statute had protected the CYS files from
disclosure to
anyone, including law-enforcement and
judicial personnel.
[
Footnote 15]
The Commonwealth also argues that Ritchie is not entitled to
disclosure because he did not make a particularized showing of what
information he was seeking or how it would be material.
See Brief for Petitioner 18 (quoting
United States v.
Agurs, 427 U. S. 97,
427 U. S.
109-110 (1976) ("The mere possibility that an item of
undisclosed information might have helped the defense . . . does
not establish
materiality' in the constitutional sense")).
Ritchie, of course, may not require the trial court to search
through the CYS file without first establishing a basis for his
claim that it contains material evidence. See United States v.
Valenzuela-Bernal, 458 U. S. 858,
468 U. S. 867
(1982) ("He must at least make some plausible showing of how their
testimony would have been both material and favorable to his
defense"). Although the obligation to disclose exculpatory material
does not depend on the presence of a specific request, we note that
the degree of specificity of Ritchie's request may have a bearing
on the trial court's assessment on remand of the materiality of the
nondisclosure. See United States v. Bagley, 473 U.
S. 667, 473 U. S.
682-683 (1985) (opinion of BLACKMUN, J.).
[
Footnote 16]
See Fed. Rule Crim. Proc. 16(d)(2); Pa.Rule Crim.Proc.
306(E) ("If at any time during the course of the proceedings it is
brought to the attention of the court that a party has failed to
comply with this rule [mandating disclosure of exculpatory
evidence], the court may . . . enter such . . . order as it deems
just under the circumstances").
[
Footnote 17]
The importance of the public interest at issue in this case is
evidenced by the fact that all 50 States and the District of
Columbia have statutes that protect the confidentiality of their
official records concerning child abuse.
See Brief for
State of California ex rel. John K. Van de Kamp et al. as
Amicus Curiae 12, n. 1 (listing illustrative statutes).
See also Besharov, The Legal Aspects of Reporting Known
and Suspected Child Abuse and Neglect, 23 Vill.L.Rev. 458, 508-512
(1978).
JUSTICE BLACKMUN, concurring in part and concurring in the
judgment.
I join Parts I, II, III-B, III-C, and IV of the Court's opinion.
I write separately, however, because I do not accept the
plurality's conclusion, as expressed in Part III-A of JUSTICE
POWELL's opinion, that the Confrontation Clause protects only a
defendant's trial rights, and has no relevance to pretrial
discovery. In this, I am in substantial agreement with much of what
JUSTICE BRENNAN says,
post, in dissent. In my view, there
might well be a confrontation violation
Page 480 U. S. 62
if, as here, a defendant is denied pretrial access to
information that would make possible effective cross-examination of
a crucial prosecution witness.
The plurality recognizes that the Confrontation Clause confers
upon a defendant a right to conduct cross-examination.
Ante at
480 U. S. 51. It
believes that this right is satisfied so long as defense counsel
can
question a witness on any proper subject of
cross-examination. For the plurality, the existence of a
confrontation violation turns on whether counsel has the
opportunity to conduct such questioning; the plurality in effect
dismisses -- or, at best, downplays -- any inquiry into the
effectiveness of the cross-examination.
Ante at
480 U. S. 51-52.
Thus, the plurality confidently can state that the Confrontation
Clause creates nothing more than a trial right.
Ante at
480 U. S.
52.
If I were to accept the plurality's effort to divorce
confrontation analysis from any examination into the effectiveness
of cross-examination, I believe that, in some situations, the
confrontation right would become an empty formality. As even the
plurality seems to recognize,
see ante at
480 U. S. 51-52,
one of the primary purposes of cross-examination is to call into
question a witness' credibility. This purpose is often met when
defense counsel can demonstrate that the witness is biased or
cannot clearly remember the events crucial to the testimony. The
opportunity the Confrontation Clause gives a defendant's attorney
to pursue any proper avenue of questioning a witness makes little
sense set apart from the goals of cross-examination.
There are cases, perhaps most of them, where simple questioning
of a witness will satisfy the purposes of cross-examination.
Delaware v. Fensterer, 474 U. S. 15 (1985)
(per curiam) is one such example. There the Court rejected a
Confrontation Clause challenge brought on the ground that an expert
witness for the prosecution could not remember the method by which
he had determined that some hair of the victim, whom Fensterer was
accused of killing, had been
Page 480 U. S. 63
forcibly removed. Although I did not join the summary reversal
in
Fensterer, and would have given the case plenary
consideration,
see id. at
474 U. S. 23, it
is easy to see why cross-examination was effective there. The
expert's credibility and conclusions were seriously undermined by a
demonstration that he had forgotten the method he used in his
analysis. Simple questioning provided such a demonstration, and was
reinforced by the testimony of the defendant's own expert, who
could undermine the other expert's opinion.
See id. at
474 U. S. 20.
[
Footnote 2/1]
There are other cases where, in contrast, simple questioning
will not be able to undermine a witness' credibility, and in fact
may do actual injury to a defendant's position.
Davis v.
Alaska, 415 U. S. 308
(1974), is a specific example. There defense counsel had the
juvenile record of a key prosecution witness in hand, but was
unable to refer to it during his cross-examination of the witness
because of an Alaska rule prohibiting the admission of such a
record in a court proceeding.
Id. at
415 U. S.
310-311. The juvenile record revealed that the witness
was on probation for the same burglary for which Davis was charged.
Accordingly, the possibility existed that the witness was biased or
prejudiced against Davis, in that he was attempting to turn towards
Davis the attention of the police that would otherwise have been
directed against him.
Page 480 U. S. 64
Although Davis' counsel was permitted to "question" the witness
as to bias, any attempt to point to the reason for that bias was
denied.
Id. at
415 U. S.
313-314.
In the Court's view, this questioning of the witness both was
useless to Davis and actively harmed him. The Court observed:
"On the basis of the limited cross-examination that was
permitted, the jury might well have thought that defense counsel
was engaged in a speculative and baseless line of attack on the
credibility of an apparently blameless witness or, as the
prosecutor's objection put it, a 'rehash' of prior
cross-examination."
Id. at
415 U. S. 318.
The Court concluded that, without being able to refer to the
witness' juvenile record, "[p]etitioner was thus denied the right
of effective cross-examination."
Ibid.
The similarities between
Davis and this case are much
greater than are any differences that may exist. In cross-examining
a key prosecution witness, counsel for Davis and counsel for
respondent were both limited to simple questioning. They could not
refer to specific facts that might have established the critical
bias of the witness: Davis' counsel could not do so because, while
he had the juvenile record in hand, he could not refer to it in
light of the Alaska rule,
see id. at
415 U. S. 311,
n. 1; respondent's attorney had a similar problem, because he had
no access at all to the CYS file of the child abuse victim,
see
ante at
480 U. S. 43-44,
and n. 2. Moreover, it is likely that the reaction of each jury to
the actual cross-examination was the same -- a sense that defense
counsel was doing nothing more than harassing a blameless
witness.
It is true that, in a technical sense, the situations of Davis
and Ritchie are different. Davis' counsel had access to the
juvenile record of the witness, and could have used it but for the
Alaska prohibition. Thus, the infringement upon Davis'
confrontation right occurred at the trial stage, when his counsel
was unable to pursue an available line of inquiry. Respondent's
attorney could not cross-examine his client's daughter with the
help of the possible evidence in the CYS
Page 480 U. S. 65
file because of the Pennsylvania prohibition that affected his
pretrial preparations. I do not believe, however, that a State can
avoid Confrontation Clause problems simply by deciding to hinder
the defendant's right to effective cross-examination, on the basis
of a desire to protect the confidentiality interests of a
particular class of individuals, at the pretrial, rather than at
the trial, stage.
Despite my disagreement with the plurality's reading of the
Confrontation Clause, I am able to concur in the Court's judgment,
because, in my view, the procedure the Court has set out for the
lower court to follow on remand is adequate to address any
confrontation problem. Here I part company with JUSTICE BRENNAN.
Under the Court's prescribed procedure, the trial judge is directed
to review the CYS file for "material" information.
Ante at
480 U. S. 58.
This information would certainly include such evidence as
statements of the witness that might have been used to impeach her
testimony by demonstrating any bias towards respondent or by
revealing inconsistencies in her prior statements. [
Footnote 2/2] When reviewing confidential records
in future cases, trial courts should be particularly aware of the
possibility that impeachment evidence of a key prosecution witness
could well constitute the sort whose unavailability to the
defendant would undermine confidence in the outcome of the trial.
As the Court points out, moreover, the trial court's obligation to
review the confidential record for material information is
ongoing.
Page 480 U. S. 66
Impeachment evidence is precisely the type of information that
might be deemed to be material only well into the trial, as, for
example, after the key witness has testified. [
Footnote 2/3]
[
Footnote 2/1]
Accordingly, the remark from
Delaware v. Fensterer,
which the plurality would use,
ante at
480 U. S. 53, as
support for its argument that confrontation analysis has little to
do with inquiries concerning the effectiveness of
cross-examination, actually suggests the opposite. The Court
observed in
Fensterer that
"the Confrontation Clause guarantees an
opportunity for
effective cross-examination, not cross-examination that is
effective in whatever way, and to whatever extent, the defense
might wish."
474 U.S. at
474 U. S. 20
(emphasis in original). This remark does not imply that concern
about such effectiveness has no place in analysis under the
Confrontation Clause. Rather, it means that when, as in
Fensterer, simple questioning serves the purpose of
cross-examination, a defendant cannot claim a confrontation
violation because there might have been a more effective means of
cross-examination.
[
Footnote 2/2]
In
United States v. Bagley, 473 U.
S. 667 (1985), the Court rejected any distinction
between exculpatory and impeachment evidence for purposes of
Brady v. Maryland, 373 U. S. 83
(1963). 473 U.S. at
473 U. S. 676.
We noted that nondisclosure of impeachment evidence falls within
the general rule of
Brady "[w]hen the
reliability of a
given witness may well be determinative of guilt or innocence.'"
Id. at 473 U. S. 677,
quoting Giglio v. United States, 405 U.
S. 150, 405 U. S. 154
(1972). We observed moreover, that, while a restriction on pretrial
discovery might not suggest as direct a violation on the
confrontation right as would a restriction on the scope of
cross-examination at trial, the former was not free from
confrontation concerns. 473 U.S. at 473 U. S.
678.
[
Footnote 2/3]
If the withholding of confidential material from the defendant
at the pretrial stage is deemed a Confrontation Clause violation,
harmless-error analysis, of course, may still be applied.
See
Delaware v. Van Arsdall, 475 U. S. 673,
475 U. S. 684
(1986).
JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins,
dissenting.
I join JUSTICE STEVENS' dissenting opinion regarding the lack of
finality in this case. I write separately to challenge the Court's
narrow reading of the Confrontation Clause as applicable only to
events that occur at trial. That interpretation ignores the fact
that the right of cross-examination also may be significantly
infringed by events occurring outside the trial itself, such as the
wholesale denial of access to material that would serve as the
basis for a significant line of inquiry at trial. In this case, the
trial court properly viewed Ritchie's vague speculations that the
agency file might contain something useful as an insufficient basis
for permitting general access to the file. However, in denying
access to the prior statements of the victim, the court deprived
Ritchie of material crucial to any effort to impeach the victim at
trial. I view this deprivation as a violation of the Confrontation
Clause.
This Court has made it plain that "a primary interest secured by
[the Confrontation Clause] is the right of cross-examination,"
Douglas v. Alabama, 380 U. S. 415,
380 U. S. 418
(1965).
"[P]robably no one, certainly no one experienced in the trial of
lawsuits, would deny the value of cross-examination in exposing
falsehood and bringing out the truth in the trial of a criminal
case,"
Pointer v. Texas, 380 U. S. 400,
380 U. S. 404
(1965). The Court therefore has scrupulously guarded against
"restrictions imposed by law or by the trial court on the scope
of
Page 480 U. S. 67
cross-examination."
Delaware v. Fensterer, 474 U. S.
15,
474 U. S. 18
(1985) (per curiam).
One way in which cross-examination may be restricted is through
preclusion at trial itself of a line of inquiry that counsel seeks
to pursue.
See ante at
480 U. S. 53, n.
9 (citing cases). The logic of our concern for restriction on the
ability to engage in cross-examination does not suggest, however,
that the Confrontation Clause prohibits
only such
limitations.
* A crucial avenue
of cross-examination also may be foreclosed by the denial of access
to material that would serve as the basis for this examination.
Where denial of access is complete, counsel is in no position to
formulate a line of inquiry potentially grounded on the material
sought. Thus, he or she cannot point to a specific subject of
inquiry that has been foreclosed, as can a counsel whose
interrogation at trial has been limited by the trial judge.
Nonetheless, there occurs as effective a preclusion of a topic of
cross-examination as if the judge at trial had ruled an entire area
of questioning off limits.
Page 480 U. S. 68
The Court has held that the right of cross-examination may be
infringed even absent limitations on questioning imposed at trial.
Jencks v. United States, 353 U. S. 657
(1957), held that the defendant was entitled to obtain the prior
statements of persons to government agents when those persons
testified against him at trial. Impeachment of the witnesses was
"singularly important" to the defendant, we said,
id. at
353 U. S. 667,
and the reports were essential to the impeachment effort. Thus, we
held that a defendant is entitled to inspect material "with a view
to use on cross-examination" when that material "[is] shown to
relate to the testimony of the witness."
Id. at
353 U. S. 669.
As I later noted in
Palermo v. United States, 360 U.
S. 343 (1959),
Jencks was based on our
supervisory authority, rather than the Constitution, "but it would
be idle to say that the commands of the Constitution were not close
to the surface of the decision." 360 U.S. at
360 U. S.
362-363 (BRENNAN, J., concurring in result). In
Palermo, I specifically discussed the Confrontation Clause
as a likely source of the rights implicated in a case such as
Jencks. 360 U.S. at
360 U. S.
362.
The Court insists that the prerequisite for finding a
restriction on cross-examination is that counsel be prevented from
pursuing a specific line of questioning. This position has
similarities to an argument the Court rejected in
Jencks.
The Government contended in that case that the prerequisite for
obtaining access to witnesses' prior statements should be a showing
by the defendant of an inconsistency between those statements and
trial testimony. We rejected that argument, noting,
"[t]he occasion for determining a conflict cannot arise until
after the witness has testified, and, unless he admits conflict, .
. . the accused is helpless to know or discover conflict without
inspecting the reports."
353 U.S. at
353 U. S.
667-668.
Cf. United States v. Burr, 25 F. Cas.
187, 191 (No. 14,694) (CC Va. 1807) ("It is objected that the
particular passages of the letter which are required are not
pointed out. But how can this be done while the letter itself is
withheld?"). Similarly,
Page 480 U. S. 69
unless counsel has access to prior statements of a witness, he
or she cannot identify what subjects of inquiry have been
foreclosed from exploration at trial. Under the Court's holding
today, the result is that partial denials of access may give rise
to Confrontation Clause violations, but absolute denials
cannot.
The Court in
United States v. Wade, 388 U.
S. 218 (1967), also recognized that pretrial events may
undercut the right of cross-examination. In
Wade, we held
that a pretrial identification lineup was a critical stage of
criminal proceedings at which the Sixth Amendment right to counsel
was applicable. This holding was premised explicitly on concern for
infringement of Confrontation Clause rights. The presence of
counsel at a lineup is necessary, the Court said,
"to preserve the defendant's right to a fair trial as affected
by his right meaningfully to cross-examine the witnesses against
him and to have effective assistance of counsel at the trial
itself."
Id. at
388 U. S. 227.
If counsel is excluded from such a proceeding, he or she is at a
serious disadvantage in calling into question an identification at
trial. The "inability effectively to reconstruct at trial any
unfairness that occurred at the lineup" may then "deprive [the
defendant] of his only opportunity meaningfully to attack the
credibility of the witness' courtroom identification."
Id.
at
388 U. S. 232.
The Court continued:
"Insofar as the accused's conviction may rest on a courtroom
identification in fact the fruit of a suspect pretrial
identification which the accused is helpless to subject to
effective scrutiny at trial,
the accused is deprived of that
right of cross-examination which is an essential safeguard to his
right to confront the witnesses against him. Pointer v. Texas,
380 U. S.
400."
Id. at
388 U. S. 235
(emphasis added).
Since a lineup from which counsel is absent is potentially
prejudicial, and "since presence of counsel itself can often avert
prejudice
and assure a meaningful confrontation at trial,"
id. at
388 U. S. 236
(emphasis added) (footnote omitted), the
Page 480 U. S. 70
Court in
Wade concluded that a pretrial lineup is a
stage of prosecution at which a defendant is entitled to have
counsel present.
The exclusion of counsel from the lineup session necessarily
prevents him or her from posing any specific cross-examination
questions based on observation of how the lineup was conducted. The
Court today indicates that this inability would preclude a finding
that cross-examination has been restricted. The premise of the
Court in
Wade, however, was precisely the opposite: the
very problem that concerned the Court was that counsel would be
foreclosed from developing a line of inquiry grounded on actual
experience with the lineup.
The Court suggests that the court below erred in relying on
Davis v. Alaska, 415 U. S. 308
(1974), for its conclusion that the denial of access to the agency
file raised a Confrontation Clause issue. While
Davis
focused most explicitly on the restriction at trial of
cross-examination, nothing in the opinion indicated that an
infringement on the right to cross-examination could occur only in
that context. Defense counsel was prevented from revealing to the
jury that the government's witness was on probation. The immediate
barrier to revelation was the trial judge's preclusion of counsel's
effort to inquire into the subject on cross-examination: Yet the
reason that counsel could not make such inquiry was a state statute
that made evidence of juvenile adjudications inadmissible in court.
Any counsel familiar with the statute would have no doubt that it
foreclosed any line of questioning pertaining to a witness'
juvenile record, despite the obvious relevance of such information
for impeachment purposes. The foreclosure would have been just as
effective had defense counsel never sought to pursue on
cross-examination the issue of the witness' probationary status.
The lower court thus properly recognized that the underlying
problem for defense counsel in
Davis was the prohibition
on disclosure of juvenile records.
Page 480 U. S. 71
The creation of a significant impediment to the conduct of
cross-examination thus undercuts the protections of the
Confrontation Clause, even if that impediment is not erected at the
trial itself. In this case, the foreclosure of access to prior
statements of the testifying victim deprived the defendant of
material crucial to the conduct of cross-examination. As we noted
in
Jencks, a witness' prior statements are essential to
any effort at impeachment:
"Every experienced trial judge and trial lawyer knows the value
for impeaching purposes of statements of the witness recording the
events before time dulls treacherous memory. Flat contradiction
between the witness' testimony and the version of the events given
in his reports is not the only test of inconsistency. The omission
from the reports of facts related at the trial, or a contrast in
emphasis upon the same facts, even a different order of treatment,
are also relevant to the cross-examining process of testing the
credibility of a witness' trial testimony."
353 U.S. at
353 U. S.
667.
The right of a defendant to confront an accuser is intended
fundamentally to provide an opportunity to subject accusations to
critical scrutiny.
See Ohio v. Roberts, 448 U. S.
56,
448 U. S. 65
(1980) ("underlying purpose" of Confrontation Clause is "to augment
accuracy in the factfinding process by ensuring the defendant an
effective means to test adverse evidence"). Essential to testing a
witness' account of events is the ability to compare that version
with other versions the witness has earlier recounted. Denial of
access to a witness' prior statements thus imposes a handicap that
strikes at the heart of cross-examination.
The ability to obtain material information through reliance on a
due process claim will not in all cases nullify the damage of the
Court's overly restrictive reading of the Confrontation Clause. As
the Court notes,
ante at
480 U. S. 57,
evidence is regarded as material only if there is a reasonable
probability that it might affect the outcome of the proceeding.
Prior
Page 480 U. S. 72
statements, on their face, may not appear to have such force,
since their utility may lie in their more subtle potential for
diminishing the credibility of a witness. The prospect that these
statements will not be regarded as material is enhanced by the fact
that due process analysis requires that information be evaluated by
the trial judge, not defense counsel.
Ante at
480 U. S. 59-60.
By contrast,
Jencks, informed by confrontation and
cross-examination concerns, insisted that defense counsel, not the
court, perform such an evaluation,
"[b]ecause only the defense is adequately equipped to determine
the effective use for the purpose of discrediting the Government's
witness, and thereby furthering the accused's defense."
Jencks, supra, at
353 U. S.
668-669. Therefore, while Confrontation Clause and due
process analysis may in some cases be congruent, the Confrontation
Clause has independent significance in protecting against
infringements on the right to cross-examination.
The Court today adopts an interpretation of the Confrontation
Clause unwarranted by previous case law and inconsistent with the
underlying values of that constitutional provision. I therefore
dissent.
* The Court contends that its restrictive view is supported by
statements in
California v. Green, 399 U.
S. 149,
399 U. S. 167
(1970), and
Barber v. Page, 390 U.
S. 719,
390 U. S. 726
(1968), that the right to confrontation is essentially a trial
right. Neither statement, however, was intended to address the
question whether Confrontation Clause rights may be implicated by
events outside of trial. In
Green, the Court held that it
was permissible to introduce at trial the out-of-court statements
of a witness available for cross-examination. The Court rejected
the argument that the Confrontation Clause precluded the admission
of all hearsay evidence, because the ability of the defendant to
confront and cross-examine the witness at trial satisfied the
concerns of that Clause. 399 U.S. at
399 U. S. 157.
In
Barber, the Court held that, where a witness could be
called to testify, the failure to do so was not excused by the fact
that defense counsel had an opportunity to cross-examine the
witness at a preliminary hearing. The Court held that, since the
Confrontation Clause is concerned with providing an opportunity for
cross-examination at trial, the failure to afford such an
opportunity when it was clearly available violated that Clause.
Thus, neither
Green nor
Barber suggested that the
right of confrontation attached exclusively at trial.
JUSTICE STEVENS, with whom JUSTICE BRENNAN, JUSTICE MARSHALL,
and JUSTICE SCALIA join, dissenting.
We are a Court of limited jurisdiction. One of the basic limits
that Congress has imposed upon us is that we may only review
"[f]inal judgments or decrees rendered by the highest court of a
State in which a decision could be had." 28 U.S. C. §1257. The
purposes of this restriction are obvious, and include notions of
efficiency, judicial restraint, and federalism.
See
Construction Laborers v. Curry, 371 U.
S. 542,
371 U. S. 550
(1963);
Radio Station WOW, Inc. v. Johnson, 326 U.
S. 120,
326 U. S. 124
(1945). Over the years the Court has consistently applied a strict
test of finality to determine the reviewability of state-court
decisions remanding cases for further proceedings, and the
reviewability of pretrial discovery orders. Given the plethora of
such decisions and orders and
Page 480 U. S. 73
the fact that they often lead to the settlement or termination
of litigation, the application of these strict rules has
unquestionably resulted in this Court's not reviewing countless
cases that otherwise might have been reviewed. Despite that
consequence -- indeed, in my judgment, because of that consequence
-- I regard the rule as wise and worthy of preservation.
I
In
Cox Broadcasting Corp. v. Cohn, 420 U.
S. 469 (1975), the Court recognized some limited
exceptions to the general principle that this Court may not review
cases in which further proceedings are anticipated in the state
courts. One of these exceptions applies
"where the federal claim has been finally decided, with further
proceedings in the state courts to come, but in which later review
of the federal issue cannot be had, whatever the ultimate outcome
of the case."
Id. at
420 U. S. 481.
The concern, of course, is that the petitioning party not be put in
a position where he might eventually lose on the merits, but would
have never had an opportunity to present his federal claims for
review.
Ibid. The most common example of this phenomenon
is where a State seeks review of an appellate court's order that
evidence be suppressed. In such a case, if the State were forced to
proceed to trial prior to seeking review in this Court, it could
conceivably lose its case at trial, and, because of the double
jeopardy rule, never have a chance to use what we might have held
to be admissible evidence.
See, e.g., New York v. Quarles,
467 U. S. 649,
467 U. S. 651,
n. 1 (1984).
This case does not fit into that exception. Were we to decline
review at this time, there are three possible scenarios on remand.
First, the Children and Youth Services (CYS) might refuse to
produce the documents under penalty of contempt, in which case
appeals could be taken and this Court could obtain proper
jurisdiction.
See United States v. Ryan, 402 U.
S. 530 (1971). Alternatively, if CYS were to produce the
documents, the trial court might find the error to be
Page 480 U. S. 74
harmless, in which case Ritchie's conviction would stand and the
Commonwealth would not have been harmed by our having declined to
review the case at this stage. Finally, the trial court could
determine that Ritchie's lack of access to the documents was
constitutionally prejudicial, and thus order a new trial. If the
Commonwealth would then have no recourse but to proceed to trial
with the risk of an unreviewable acquittal, I agree that the
Cox exception would apply. Under Pennsylvania law,
however, the Commonwealth would have the opportunity for an
immediate interlocutory appeal of the new trial order.
Pennsylvania Rule of Appellate Procedure 311(a)(5) affords the
Commonwealth a right to an interlocutory appeal in criminal cases
where it "claims that the lower court committed an error of law."
An argument that the trial court erred in evaluating the
constitutionally harmless-error issue would certainly qualify under
that provision. [
Footnote 3/1]
Moreover, the Commonwealth could, if necessary, reassert the
constitutional arguments that it now makes here. Although the
claims would undoubtedly be rejected in Pennsylvania under the
law-of-the-case doctrine, that would not bar this Court from
reviewing the claims.
See Barclay v. Florida, 463 U.
S. 939,
463 U. S. 946
(1983);
Hathorn v. Lovorn, 457 U.
S. 255,
457 U. S.
261-262 (1982);
see
Page 480 U. S. 75
generally R. Stern, E. Gressman, & S. Shapiro,
Supreme Court Practice 132 (6th ed. 1986).
The fact that the Commonwealth of Pennsylvania cannot
irrevocably lose this case on the federal constitutional issue
without having an opportunity to present that issue to this Court
takes this case out of the
Cox exception that the Court
relies upon. Nonetheless, the Court makes the astonishing argument
that we should hear this case now because, if Ritchie's conviction
is reinstated on remand, "the issue of whether defense counsel
should have been given access will be moot," and the Court will
lose its chance to pass on this constitutional issue.
Ante
at
480 U. S. 48.
This argument is wholly contrary to our long tradition of avoiding,
not reaching out to decide, constitutional decisions when a case
may be disposed of on other grounds for legitimate reasons.
See
Ashwander v. TVA, 297 U. S. 288,
297 U. S.
346-347 (1936) (Brandeis, J., concurring);
Rescue
Army v. Municipal Court, 331 U. S. 549,
331 U. S. 571
(1947). Indeed, the Court has explained that it is precisely the
policy against unnecessary constitutional adjudication that demands
strict application of the finality requirement.
Republic
Natural Gas Co. v. Oklahoma, 334 U. S. 62,
334 U. S. 70-71
(1948).
II
The Court also suggests that a reason for hearing the case now
is that, if CYS is forced to disclose the documents, the
confidentiality will be breached and subsequent review will be too
late.
Ante at
480 U. S. 48-49,
and n. 7. This argument fails in light of the longstanding rule
that if disclosure will, in and of itself, be harmful, the remedy
is for the individual to decline to produce the documents, and
immediately appeal any contempt order that is issued. This rule is
exemplified by our decision in
United States v. Ryan,
402 U. S. 530
(1971), a case in which a District Court denied a motion to quash a
subpoena
duces tecum commanding the respondent to produce
certain documents located in Kenya. The Court of Appeals held that
the order was appealable, but we reversed, explaining:
Page 480 U. S. 76
"Respondent asserts no challenge to the continued validity of
our holding in
Cobbledick v. United States, 309 U. S.
323 (1940), that one to whom a subpoena is directed may
not appeal the denial of a motion to quash that subpoena, but must
either obey its commands or refuse to do so and contest the
validity of the subpoena if he is subsequently cited for contempt
on account of his failure to obey. Respondent, however, argues that
Cobbledick does not apply in the circumstances before us,
because, he asserts, unless immediate review of the District
Court's order is available to him, he will be forced to undertake a
substantial burden in complying with the subpoena, and will
therefore be 'powerless to avert the mischief of the order.'
Perlman v. United States, 247 U. S. 7,
247 U. S. 13 (1918)."
"We think that respondent's assertion misapprehends the thrust
of our cases. Of course, if he complies with the subpoena he will
not thereafter be able to undo the substantial effort he has
exerted in order to comply. But compliance is not the only course
open to respondent. If, as he claims, the subpoena is unduly
burdensome or otherwise unlawful, he may refuse to comply and
litigate those questions in the event that contempt or similar
proceedings are brought against him. Should his contentions be
rejected at that time by the trial court, they will then be ripe
for appellate review. But we have consistently held that the
necessity for expedition in the administration of the criminal law
justifies putting one who seeks to resist the production of desired
information to a choice between compliance with a trial court's
order to produce prior to any review of that order, and resistance
to that order with the concomitant possibility of an adjudication
of contempt if his claims are rejected on appeal.
Cobbledick v.
United States, supra; Alexander v. United States, 201 U. S.
117 (1906);
cf. United States v. Blue,
384 U. S.
251 (1966);
DiBella
Page 480 U. S. 77
v. United States, 369 U. S. 121 (1962);
Carroll v. United States, 354 U. S.
394 (1957). Only in the limited class of cases where
denial of immediate review would render impossible any review
whatsoever of an individual's claims have we allowed exceptions to
this principle."
Id. at
402 U. S.
532-533.
In the case before us today, the Pennsylvania Supreme Court has
instructed the trial court to order CYS to produce certain
documents for inspection by the trial court and respondent's
counsel. Although compliance with the order might be burdensome for
a different reason than the burden of obtaining documents in Kenya,
the burden of disclosure is sufficiently troublesome to CYS that it
apparently objects to compliance. [
Footnote 3/2] But as was true in the
Ryan case,
it has not yet been given the chance to decide whether to comply
with the order, and therefore has not satisfied the condition for
appellate review that we had, until today, consistently imposed.
[
Footnote 3/3]
Page 480 U. S. 78
III
Finally, the Court seems to rest on the rationale that, because
this respondent has aLReady been tried, immediate review in this
particular case will expedite the termination of the litigation.
See ante at
480 U. S. 48-49,
n. 7. I am not persuaded that this is so -- if we had not granted
certiorari, the trial court might have reviewed the documents and
found that they are harmless a year ago -- but even if it were, the
efficient enforcement of the finality rule precludes a case-by-case
inquiry to determine whether its application is appropriate. Only
by adhering to our firm rules of finality can we discourage
time-consuming piecemeal litigation.
Of course, once the case is here and has been heard, there is
natural reluctance to hold that the Court lacks jurisdiction. It is
misguided, however, to strain and find jurisdiction in the name of
short-term efficiency when the long-term effect of the relaxation
of the finality requirement will so clearly be inefficient. If the
Court's goal is expediting the termination of litigation, the worst
thing it can do is to extend an open-ended invitation to litigants
to interrupt state proceedings with interlocutory visits to this
Court.
I would therefore dismiss the writ because the judgment of the
Supreme Court of Pennsylvania is not final.
[
Footnote 3/1]
See Commonwealth v. Blevins, 453 Pa. 481, 482-483, 309
A.2d 421, 422 (1973) (whether "the testimony offered at trial by
the Commonwealth was insufficient to support the jury's finding" is
appealable issue of law);
Commonwealth v. Melton, 402 Pa.
628, 629,168 A.2d 328, 329 (1961) (citing case "where a new trial
is granted to a convicted defendant on the sole ground that the
introduction of certain evidence at his trial was prejudicial
error" as example of appealable issue of law);
Commonwealth v.
Durah-El, 344 Pa.Super. 511, 514, n. 2,
496
A.2d 1222, 1224, n. 2 (1985) (whether trial counsel provided
ineffective assistance of counsel is appealable as asserted "error
of law");
Commonwealth v. Carney, 310 Pa.Super. 549, 551,
n. 1,
456
A.2d 1072, 1073, n. 1 (1983) (whether curative instruction was
sufficient to remedy improper remark of prosecution witness is
appealable as asserted "error of law").
[
Footnote 3/2]
It is not clear to what extent counsel for the Commonwealth in
this case represents CYS, or whether he only represents the Office
of the District Attorney of Allegheny County. CYS is certainly not
a party to this case; in fact, it has filed an
amicus
curiae brief expressing its views. That CYS is not a party to
the case makes it all the more inappropriate for the Court to relax
the rule of finality in order to spare CYS the need to appeal a
contempt order if it fails to produce the documents.
[
Footnote 3/3]
The Court has recognized a limited exception to this principle
where the documents at issue are in the hands of a third party who
has no independent interest in preserving their confidentiality.
See Perlman v. United States, 247 U. S.
7 (1918);
see also United States v. Ryan,
402 U. S. 530,
402 U. S. 533
(1971). This case presents a far different situation. As far as the
disclosure of the documents goes, it is CYS, not the prosecutor,
that claims a duty to preserve their confidentiality and to
implement Pennsylvania's Child Protective Services Law.
See Brief for Allegheny County, Pennsylvania, on behalf of
Allegheny County Children and Youth Services as
Amicus
Curiae in Support of Petitioner 2.
Nor does this case come within the exception of
United
States v. Nixon, 418 U. S. 683,
418 U. S.
691-692 (1974), where the Court did not require the
President of the United States to subject himself to contempt in
order to appeal the District Court's rejection of his assertion of
executive privilege. As Judge Friendly explained, the rationale of
that decision is unique to the Presidency, and is "wholly
inapplicable" to other government agents.
See National Super
Suds, Inc. v. New York Mercantile Exchange, 591 F.2d 174,177
(CA2 1979);
see also Newton v. National Broadcasting Co.,
726 F.2d 591 (CA9 1984);
United States v. Winner, 641 F.2d
825, 830 (CA10 1981);
In re Attorney General of the United
States, 596 F.2d 58, 62 (CA2),
cert. denied, 444 U.S.
903 (1979);
but see In re Grand Jury Proceedings (Wright
II), 654 F.2d 268, 270 (CA3),
cert. denied, 464 U.S.
1098 (1981);
Branch v. Phillips Petroleum Co., 638 F.2d
873, 877-879 (CA6 1981).