Pennsylvania v. Ritchie

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 *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 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 51-52. Thus, the plurality confidently can state that the Confrontation Clause creates nothing more than a trial right. Ante, at 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 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 *63 forcibly removed. Although I did not join the summary reversal in Fensterer and would have given the case plenary consideration, see id., at 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 20 . 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 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. *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 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 318 . The Court concluded that, without being able to refer to the witness’ juvenile record, “[petitioner 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 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 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 *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 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. 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. *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. 3

Accordingly, the remark from Delaware v. Fensterer , which the plurality would use, ante, at 63, 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 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.

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 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 677, quoting Giglio v. United States, 405 U. S. 150, 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 678 .

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, 684 (1986).