Pennsylvania v. Ritchie

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, 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, 404 (1965). The Court therefore has scrupulously guarded against “restrictions imposed by law or by the trial court on the scope of *67 cross-examination.” Delaware v. Fensterer, 474 U. S. 15, 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 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.

*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 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 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 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 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 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 witheld? ”). Simi *69 larly, 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 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 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 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 236 (emphasis added) (footnote omitted), the *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 suggésts 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.

*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 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, 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 57, evidence is regarded as material only if there is a reasonable probability that it might affect the outcome of the proceeding. Prior *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 59-60. By contrast, Jencks , informed by confrontation and cross-examination concerns, insisted that defense counsel, not the court, perform such an evaluation, “[bjecause 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 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, 157 (1970), and Barber v. Page, 390 U. S. 719, 725 (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 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.