Petition for Writ of Certiorari — Quincy Marquice Taylor, Petitioner v. United States

In the Supreme Court of the Gnited States

QUINCY MARQUICE TAYLOR,

Petitioner

Vv.

UNITED STATES OF AMERICA,

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Respectfully submitted,

PHILIP C. LAWSON

TRUE GUARNIERI AYER, LLP

124 Clinton Street

Frankfort, Kentucky 40601

plawson@truelawky.com

Phone: (502) 605-9900

Fax: (502) 605-9901

Counsel for Petitioner

QUESTION PRESENTED

Whether the Confrontation Clause of Amendment VI to the United States

Constitution grants a criminal defendant a pretrial right to compel discovery of

documents that may assist him in effectively cross-examining a witness.

PARTIES

The parties in the Sixth Circuit Court of Appeals include the petitioner Quincy

Marquice Taylor, appellant below, and respondent United States of America, appellee

below.

PROCEEDINGS DIRECTLY RELATED TO THE CASE

The proceedings that are directly related to the case include:

1. Eastern District of Kentucky, United States of America v. Quincy Marquice

Taylor, Criminal No. 5:22-CR-137-DCR-01, judgment entered on November 8, 2025.

2. Sixth Circuit Court of Appeals, United States of America v. Quincy Marquice

Taylor, No. 25-6085, judgment entered on June 16, 2026.

il

TABLE OF CONTENTS

Question Presented 0.0... ccc eee eee LEE TEESE EEE DEEN EEE E eRe EEE EE ent EEE EEE i

PAYLtleS occ cece en EEE EERE LEDER EEE EERE EEE EERE EE Eee i

Proceedings Directly Related to the Case ........cccccecceecece etre nent rene ene ene ncaa ne enee il

Table of Contents 0... ccc EEE EEE ELEC Eee ii

Table of AUthorities ......ccc ccc cece een een e ECE EEE EEE EEE EEE EE SEE EERE EE EH ood lv

Opinions Below ......ccccccecce cece eee n eee ee renee eee EERE EEDA LEED EEE EEE SEEDED HORE E EASE EEE EES 1

SULISGICEION coc cce ccc en EEE EEE EEE EE EERE ADEE SEED ELSE EERE OEE EE CHEESE REESE 1

Constitutional Provisions Involved 1.0.0... ccc ccc cece eens eee nero enone nen en en enenenenes 2

Statement of the Case ....cccccceceeceee cence eee eee nee eee eee ene EEE eee EH SEE SESS rE SESE EES 2

Reasons for Allowance of the WYit 2.0.0.0... ccc eee cence cent net e nen erence tenses nen e ene n noes 8

I. The Issue Relates to a Fundamental Constitutional Right

of the Criminally Accused .........cccccccc cece eee ce eee e ceases eee eens eee e nn eneenens 8

II. This Court Has Never Decided the Issue ........ cece cece nese ne ne none nees 11

III. Lower Courts Are Split on the Issue and

Some Continue to Rely on Ritchie's Plurality Opinion .............ceceeee 16

COncluUSION .....cce cee cee EEE EEE EEE EEL OLE EEE EERE EEE; EE EEE ES 19

Appendix A — Court of Appeals, Opinion and Judgment (June 16, 2026) ........... la

Appendix B — District Court, Memorandum Opinion (July 3, 2025) we. 15a

Appendix C — District Court, Judgment (November 8, 2025) 0.0... ccecceeeeee ees 25a

i

TABLE OF CITED AUTHORITIES

Cases:

Barber v. Page,

390 U.S. 719 (1968) ooo c cece eee tee ene e re EEE E EEE EOE DE EE EE EES 7

Barnes v. Vannoy,

697 F. App'x 799 (5th Cir. 2017) wc. cccecccese eee ee eee n eee eteeeeeeeeeea tes 17

Carter v. Chappell,

2013 LX 78810 (S.D. Cal. Mar. 18, 2018)... ccc cc cceeeeneen ene ee ences 17

Chambers v. Mississippi,

A410 U.S. 284 (1978) ccc cree nnn EER EEE eee t ne Ede dee 9

Commonwealth v. Figueroa,

946 N.E.2d 142 (Mass. App. 2011) ..... ccc cece e eee ee eee ee ene eneneenens 18

Commonwealth v. Morales,

91 A.8d 80 (Pa. 2014) oo... ccc cc ccce cece e eee e eee e eee e eee e tena nent need tes 18

CTS Corp. v. Dynamics Corp. of Am.,

A8B1 U.S. 69 (1987) coc ce cence rere reer en EEE EEE EEE aa »» 1d

Davis v. Alaska,

415 U.S. 808 (1974) voce cece cence eee rene een e nee e ed ene EER eH EEE ES 11, 18

Delaware v. Fensterer,

ATA U.S. 15 (1985) coc cece cece eer e renee cere nen e nee ne nee E EEE EE EA ERE ERE E ES 11

Duncan v. Tennessee,

405 U.S. 127 (1972) oo cece cece cen e eee eee eee ee bene eden sees en ene need en enenenes 10

Grammer v. Easterling,

2013 U.S. Dist. LEXIS 64111 (E.D. Tenn. May 3, 2018)... ee. 17

Illinois v. Vitale,

4AT U.S. 410 (1980) Loc cece cece eee ee een e dente eee teen taeda eb enes 9

Isaac v. Grider,

2000 U.S. App. LEXIS 9629 (6th Cir. May 4, 2000) ......... cece cence ees 17

iv

Jencks v. United States,

353 U.S. 657 (1957) ceccccccceccsecsecescecseecsecetcetseeeeecntectevvseniestienerens 14

Jennings v. Rodriguez,

580 U.S. 1040 (2016) oo. cc cece eee ee cere eee eee e ene e eed een ene ea en eeS 10

Johnson v. United States,

574 U.S. 1069 (2015) oo. c ccc eee een eee nee eee e eben ene nen eae 10

Kentucky v. Stincer,

482 U.S. 780 (1987) occ ce cece ene nner E EEE ELAR E EEE eae 13

Layne & Bowler Corp. v. Western Well Works,

261 U.S. B87 (1928) occ cece c eee ence eee nee n REE EERE EEE EEE Ea EES 8

Martin v. Darnell,

960 S.W.2d 888 (Tex. App. 1997) .....cccccececccecee ene eeeeeeseneeaeneeaeeaenes 18

Massachusetts v. Painten,

BB9 U.S. 560 (1968) oo. c ccc cece cece ee eee een ene EEE ERED EEE EE EEE EEE 10

McCray v. Capra,

45 F.4th 684 (2d Cir, 2022) voc ccccccccccccecececenene seen eeeeeeeeeenenenes 16,17

McClinton v. United States,

148 S. Ct. 2400 (2028) oo ccccc cece nce e cence cent eee e eens ee eee en eneeneeeenetaes 10

Middlebrooks v. Bell,

619 F.3d 526 (6th Cir. 2010) 0... ececc cece eee ee eee neesene eae eaeeeeaeneeaes 16

Napue v. Illinois,

360 U.S. 264 (1959) occ ce cece cece eee eee een eee teense ed ed ea earn Ea eas 11

New York v. Uplinger,

ABT U.S, 246 (1984) oo cccccc ccc eee eee e eee ee neta eens enen eben en eaee eae 10, 16

NLRB v. Pittsburgh S.S. Co.,

B40 U.S. 498 (1951) oo. ccc cece reer nner EEE nen etd ea 8

Oakes v. Commonwealth,

320 S.W.3d 50 (Ky. 2010) ...c ccc ccc cece enc ee eee ee etna eeeee ene en ened enaenes 18

Ortiz v. United States,

B85 U.S. 427 (2018) ccc nen EE EE EEE EEE Ea 9

Pa. v. Mimms,

ABA U.S. 106 (1977) weccccecccccceceecesceeeeveseecrseneevsrsceseeceecsseevstsenes 9

Pennsylvania v. Ritchie,

480 U.S. 89 (1987) .occccceccce cence eee ene nee e eae een eee nee n a ened 7,9, 11, 12

People v. Gissendanner,

399 N.E.2d 924 (N.Y. 1979) oo. ccccccec cece cece eee nent eee eee be 19

People v. McCray,

12 N.H.8d 1079 (NVY. 2014) co.cc cece cece eee ee ne ene eenene een en enenees 18

Renusch v. Berghuts,

75 Fed. Appx. 415 (6th Cir. 2008) .....ccccccccccece eee ee eens enone seen eee en ens 17

Rice v. Sioux City Mem'l Park Cemetery, Inc.,

B49 U.S. 70 (1955) occ ccc ce cece cee ee ERLE EEE EE 8

Ross v. DA of Allegheny,

672 F.3d 198 (8d Cir. 2012) occ cce cece cece tence eee eben teeta ene ne eee 17

State v. Fortun-Cebada,

241 P.38d 800 (Wash. App. 2010) .......c ccc cece cence renee eee eneeenee nena eens 18

State v. Lopez,

314 P.3d 236 (N.M. 2018) .cccecccccccccsscevseeceeceessecereeecseenseseeenavens 18

State v. Pratt,

669 A.2d 562 (Conn, 1995) oo. e cece cece eee e ene tenet eed eee ea ea eaeneenees 18

Tacon v. Arizona,

A410 U.S. 851 (1978) cece cece cece cen eee te eee eens nena E Eee EERE Ea Enea 10

Texas v. Brown,

AGO U.S. 780 (1988) 0... cece cece ee cence een e recent eee e nee e eee e tenet ed 15

Thompson v. Clark,

ayo) fm © tc PES ok @-10))/) rr 17

United States v. Abel,

ABO U.S. 45 (1984) oo cece cececeee rene ee ne ne ee nent eens beeen ease en en enon enenene 11

vi

United States v. Arias,

936 F.8d 798 (8th Cir. 2019) ......cccccceccc cece cece eens eee encase ee ene ene en ees 18

United States v. Blue,

340 F. Supp. 38d 862 (D.S.D. 2018) 0... cece cece eee e ee enenene ne enenene 16

United States v. Constantine,

296 U.S. 287 (1985) co.cc cece e ee een ener eee EEE ene E EEE EEE EH EERE Ea 8

United States v. Fattah,

914 F.8d 112 (8d Cir, 2019) 0... ccc ccceccc eee ee eee eeeeeneneneneneneneaens 17

United States v. Garrett,

542 F.2d 23 (6th Cir. 1976) oo... ccc cece eee ce eee e cece ee ene ene na snes 18, 19

United States v. Gray,

1996 U.S. App. LEXIS 17528 (4th Cir. July 17, 1996) «00... 17

United States v. Herrick,

2009 U.S. Dist. LEXIS 84719 (D.S.D. Sep. 17, 2009) oo... eee 18

United States v. Isa,

923 F.2d 1300 (8th Cir. 1991)... ccccece ec ee ee eee nena eneteneee seen en eneees 17

United States v. Mejia,

448 F.3d 486 (D.C. Cir. 2006) 00... ccc ccecene rece ee en eneneeeeneeseneeneaens 17

United States v. Sineneng-Smith,

+550] OO int Pars At 071.0) 0) 10

United States v. Taylor,

127 F.4th 1008 (6th Cir. 2025) ..... ccc cccceeese eee eesssttenee oO

United States v. Tucker,

249 F.R.D. 58 (S.D.N.Y. 2008) ..... ccc ccc cece cece ec ee ee enone teense en eneneneeae 18

United States v. Wade,

B88 U.S. 218 (1967) cece cece een eee nn EEE EEE EEE Ene Eee 14

United States v. Wright,

866 F.3d 899 (8th Cir. 2017) occ ccccccc cee ce cece eee eee e ne enone tee ene tees 17

Wallace v. Price,

2002 U.S. Dist. LEXIS 19973 (W.D. Pa. Oct. 1, 2002) oo... 18

vil

Williams v. Taylor,

529 U.S. 362 (2000)

eee eee eee eee ee eee eee ee eee ee ee

vill

In the Supreme Court of the Anited States

QUINCY MARQUICE TAYLOR,

Petitioner

V.

UNITED STATES OF AMERICA,

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Petitioner Quincy Marquice Taylor respectfully petitions for a writ of certiorari

to review the judgment of the United States Court of Appeals for the Sixth Circuit.

OPINIONS BELOW

The opinion of the court of appeals (App., infra, la) is a reported opinion

available at 178 F.4th 1017 (6th Cir. 2026). The opinion of the district court (App.,

infra, 15a) is not reported, but is available at United States v. Taylor, No. 5: 22-187-

DCR, 2025 U.S. LEXIS 126672 (B.D. Ky. July 3, 2025).

JURISDICTION

This is a petition seeking certiorari review of the judgment of the Sixth Circuit

Court of Appeals entered on June 16, 2026, and the jurisdiction of this Court is

invoked under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

Amendment VI to the United States Constitution provides:

In all criminal prosecutions, the accused shall enjoy the right to a

speedy and public trial, by an impartial jury of the State and

district wherein the crime shall have been committed, which

district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be confronted

with the witnesses against him; to have compulsory process for

obtaining witnesses in his favor, and to have the Assistance of

Counsel for his defence.

STATEMENT OF THE CASE

Basis for Federal Jurisdiction. This petition seeks certiorari review of the

judgment of the Sixth Circuit Court of Appeals, and the basis of federal jurisdiction

is that it is a criminal case under the criminal laws of the United States that

originated with an indictment of the petitioner in the Eastern District of Kentucky.

Underlying Facts. Petitioner Quincy Marquice Taylor (“Taylor”) was indicted

in the Eastern District of Kentucky for: (1) possession with intent to distribute

cocaine,! (2) possession of a firearm in furtherance of a drug trafficking crime,? and

possession of a firearm by a convicted felon.2 R 1, Page ID 1-5. The key witness

against Taylor was William Howell (“Howell”). It is the trial court’s denial of Taylor's

pretrial request to obtain court documents related to Howell’s expunged state court

criminal cases that is the subject of this petition. The trial court rejected Taylor’s

1 A violation of 21 U.S.C. § 841(a)(1).

? A violation of 18 U.S.C. § 924(c)(1)(A).

3 A violation of 18 U.S.C. § 922(¢)(1).

argument that he was entitled to such records pursuant to the Confrontation Clause

of the Sixth Amendment in order to be able to effectively cross-examine Howell. R

114, Page ID 1001-02.4 The Sixth Circuit Court of Appeals affirmed the trial court

order denying Taylor access to Howell’s criminal court records. R 158-1.

Howell was the key witness against Taylor, and his credibility was vital to the

jury’s determination as to Taylor’s guilt.6 It was the testimony of Howell that

connected Taylor to the drugs and firearm, thus leading to Taylor’s conviction.

Howell’s testimony consisted of the following: Around midnight on October 27, 2021,

Howell was parked off the roadway on an exit ramp on Interstate 75 in Lexington,

Kentucky, at which time he witnessed a one-vehicle wreck on the exit ramp. Taylor

exited the wrecked vehicle and asked Howell to take possession of a bag that was in

the vehicle. Taylor showed Howell the contents of the bag, which contained drugs and

a firearm. Howell refused to take the bag, and Taylor then hid the bag on the side of

the exit ramp and left the scene. Shortly thereafter, police arrived at the scene and

spoke with Howell who assisted them in finding the bag left behind by Taylor. R 145,

Page ID 1431-1441. The bag contained a handgun and cocaine. R 145, Page ID 1506-

1510. These were Howell’s version of the facts and resulted in Taylor’s conviction.

However, Howell’s interaction with law enforcement authorities did not end

there. In March of 2022, while Taylor’s case was pending, Howell was charged in the

4'Taylor was convicted on all counts and sentenced to 360 months in prison. R 185, Page 1D 1289-1295.

5 In its opinion in Taylov’s first appeal, the Sixth Circuit characterized Howell’s testimony as being

critical to the government’s case, characterizing Howell as the government’s “star witness,” and

stating that “[w]ithout Howell, the government’s case against Taylor collapses.” United States v.

Taylor, 127 F.4th 1008, 1011 and 1017 (6th Cir. 2025).

3

Gallatin Circuit Court with felony possession of a controlled substance (drug

unspecified) and misdemeanor assault and possession of drug paraphernalia. R 108-

1, Page ID 913-916. In July of 2022, federal agents interviewed Howell in preparation

for Taylor’s trial. During that interview, Howell brought up his pending Gallatin

County felony drug possession charge and asked what “benefits” he might receive for

cooperating, expressing concern about recent encounters with police. R 87-1, Page ID

734. Although no promises were made, one agent told Howell to consult his attorney,

stating a benefit might be possible. Id.

In November of 2022, Howell subsequently pled guilty to the Gallatin County

drug charges pursuant to a written plea agreement. He received a sentence of 18

months in prison, which was diverted for a period of 18 months on the condition that

Howell did not commit any other offenses during the period of diversion. If Howell

successfully completed his diversion, the charges would be “dismissed-diverted.” R

108-1, Page ID 918-916; R 108-2, Page ID 917-919.

But Howell’s problems did not end there. Only two months later, in January of

2023, while he was still on diversion from his prior drug charges, Howell was charged

in the Gallatin Circuit Court with felony possession of a handgun by a convicted felon.

R 108-3, Page ID 920-921. This new offense violated the terms of Howell’s diversion

agreement from his drug offense. If the diversion agreement was revoked, Howell’s

diverted felony drug offense would become a permanent conviction, and the new gun

possession charge could serve as a basis for the Gallatin Circuit Court to impose

Howell’s diverted 18-month sentence. Fortunately for Howell, at that time, Taylor’s

case was still pending trial. As a result, “the state prosecutor had communicated a

willingness to dismiss Howell’s pending firearm charge as well as not pursuing

revocation of the diversion agreement” if he continued to cooperate in the federal

prosecution of Taylor. R 98, Page ID 798.

In May of 2028, while Howell’s diverted felony drug charge and subsequent

felony gun charge were pending, Taylor’s case went to trial (for the first time). Howell

testified at the trial, identifying Taylor as the possessor of the drugs and handgun in

the bag that the police had located near the exit ramp, and Taylor was convicted of

all three charges.® R 48, Page ID 176.

A mere three days after Taylor’s conviction, Howell’s pending felony gun

charge was dismissed by the Gallatin Circuit Court. R 98, Page ID 799. Because the

gun charge had been dismissed, Howell was able to successfully complete his 18-

month diversion on the felony drug charge, and such charge was also dismissed. Id.

Subsequently, Howell’s diverted-dismissed felony drug possession case was expunged

pursuant to KRS 431.076.7 R 109-7, Page ID 966-969.

Taylor’s conviction was subsequently reversed by the Sixth Circuit Court of

Appeals and remanded to the trial court for a new trial. United States v. Taylor, 127

6 Not so coincidentally, Taylor’s charges of drug and firearm possession were the same type of alleged

illegal conduct as Howell’s Gallatin County charges.

7 KRS 431.076 provides for the expungement of the court record of a criminal charge that has been

dismissed. After the expungement, “the proceedings in the matter shall be deemed never to have

occurred. The court and other agencies shall delete or remove the records from their computer systems

so that any official state-performed background check will indicate that the records do not exist. The

court and other agencies shall reply to any inquiry that no record exists on the matter.” KRS

431.076(6).

F.4th 1008 (6th Cir. 2025).8 Prior to the second trial, Taylor subpoenaed the court

records from Howell’s expunged felony drug case that had been dismissed-diverted.

R 95, Page ID **; R 96, Page ID 791-92. Pursuant to KRS 431.076(6), the Gallatin

Circuit Court Clerk and the Administrative Office of the Courts refused to produce

the court records from Howell’s expunged case. R 101-4, Page ID 808-812, 841-843.

Taylor filed a motion for the Gallatin Circuit Court Clerk and Administrative

Office of the Courts to show cause why they should not be held in contempt for

refusing to comply with the subpoena to produce the court records. R 101, Page ID

808-811. The government also filed a motion in limine to limit the scope of Taylor’s

cross-examination of Howell, seeking to “exclude any discussion of the underlying

facts related to the now dismissed and expunged offenses [and] the specific nature of

now-expunged misdemeanor offenses,” which the government claimed would be

unfairly prejudicial under Federal Rule of Evidence 403. R 98, Page ID 796-803; R

114, Page ID 996.

The trial court granted the government’s motion to exclude testimony

regarding Howell’s misdemeanor charges; but denied the motion to exclude evidence

as to what penalties Howell faced for the diverted-dismissed felony drug possession

charge and the dismissed felony gun possession charge as those facts “allow the jury

to assess the degree of [Howell’s] potential motivation [to testify against Taylor] and

8 Although not directly pertinent to the issue raised here, the Sixth Circuit held the trial court should

not have improperly limited Taylor’s “ability to cross-examine Howell about matters going to bias,

prejudice, or his motivation to testify,” id. at 1015, and that the limitation prevented the jury from

having “enough information to make an informed judgment as to the weight to place on Howell’s

testimony,” id. at 1017 (citation modified).

bias.” R 114, Page ID 1001. More importantly, for purposes of this petition, the trial

court also denied Taylor’s request for access to Howell’s expunged court records

because, with the aforesaid inquiry the court was allowing Taylor to make about

Howell’s two felony cases, “the jury will have sufficient information to assess Howell’s

potential bias, prejudice, or motivation to testify.” Id. And because, even without the

court records, “Taylor has sufficient information at his disposal to impeach Howell, if

needed.” Jd. at 1001-1002. But, without the records, Taylor was never able to see

exactly what plea deal Howell received from the Gallatin County prosecutor and how

it might be tied to his testimony against Taylor.

Taylor was subsequently convicted of all three charges and sentenced to 360

months in prison. R 135. Taylor appealed the conviction, raising the Confrontation

Clause issue as to the denial of access to Howell’s criminal records (and other issues).

The Sixth Circuit affirmed the ruling of the trial court, rejecting Taylor’s argument

that the trial court’s denial of his request for Howell’s expunged criminal case records

violated his right under the Confrontation Clause. The Sixth Circuit held that the

right of confrontation is “basically a trial right,” which is “designed to prevent

improper restrictions on the types of questions that defense counsel may ask during

cross-examination.” R 158-1, Page ID 1647 (quoting Barber v. Page, 390 U.S. 719, 725

(1968) and Pennsylvania v. Ritchie, 480 U.S. 39, 538 (1987)). Citing the plurality

opinion in Ritchie as support, the court held that “the right to confrontation does not

create a concomitant right to pretrial discovery,” id., and concluded “Taylor’s inability

to obtain Howell’s criminal file from state-court officials does not infringe Taylor’s

confrontation rights. [citation omitted]. Taylor was able to confront Howell during his

trial. And, through counsel, Taylor had the opportunity to cross-examine Howell,

including about his criminal history and any incentives for his testimony,” id. The

court rejected Taylor’s argument that he needed the court records to “meaningfully

test Howell’s bias or credibility,” holding that the opportunity for the “rigorous

testing” of a witness’ bias or credibility under the Confrontation Clause does not go

so far as to authorize such testing in “whatever form a defendant may choose.” R 158-

1, Page ID 1648. Again, relying upon the plurality opinion in Ritchie, the court

concluded: “In sum, we conclude that the Confrontation Clause does not grant a

defendant a pretrial right to compelled discovery of documents that might assist him

in cross-examining a witness. See Ritchie, 480 U.S. at 52-54.” Id.

REASONS FOR ALLOWANCE OF THE WRIT

There must be compelling reasons to grant certiorari. Supreme Ct. R. 10.

Reasons that might compel a grant of certiorari include the fact that the decision of

the court of appeals is in conflict with the decision of other courts of appeals on an

important legal issue, or the court of appeals has decided an important federal law

question that has not been, but should be, settled by this Court. Jd. An issue having

constitutional dimension can be a compelling reason to grant certiorari, Rice v. Sioux

City Mem'l Park Cemetery, Inc., 349 U.S. 70, 74 (1955), particularly if the

constitutional issue is of importance to the public and to future litigants, as

distinguished from that of the parties, NURB v. Pittsburgh S.S. Co., 340 U.S. 498,

502 (1951) (citing Layne & Bowler Corp. v. Western Well Works, 261 U.S. 387, 393

(1923)), and there are presently conflicting decisions on such constitutional issue in

the lower courts, United States v. Constantine, 296 U.S. 287, 290 (19385).

This appeal meets these criteria. It involves a constitutional issue in a criminal

case involving the Confrontation Clause that has broad-ranging significance to future

criminal cases, which constitutional issue has not been settled by this Court, and with

there being a split on such issue among the lower courts. In fact, this Court previously

granted certiorari in another case on this very issue, explaining that it did so “[i]n

light of the substantial and conflicting interests held by the Commonwealth and [the

defendant] Ritchie.” Pennsylvania v. Ritchie, 480 U.S. 39, 46 (1987).° For these

reasons, the Court should grant certiorari.

Il. The Issue Relates to a Fundamental Constitutional Right of the

Criminally Accused

This is a criminal case involving the significant constitutional question of

whether a defendant’s constitutional right under the “right of cross-examination”

component of the Confrontation Clause compels the pretrial disclosure to the

defendant of protected documents that would make cross-examination of a material

witness more effective. As such, the issue is of great public importance beyond the

parties here in that it involves an important and fundamental constitutional right

relating directly to the proper administration of justice and is of great significance

and consequence to future defendants who may encounter a similar situation.

9 Although the Court granted certiorari in Ritchie, it did not decide the Confrontation Clause issue by

majority opinion.

Resolution of this constitutional issue by the Court is a compelling reason to grant

certiorari.

This Court has often granted certiorari in cases involving fundamental

constitutional issues in the context of a criminal proceeding, Illinois v. Vitale, 447

U.S. 410 (1980) (double jeopardy); Pa. v. Mimms, 484 U.S. 106 (1977) (search and

seizure); Chambers v. Mississippi, 410 U.S. 284 (1978) (due process); Ortiz v. United

States, 585 U.S. 427 (2018) (appointments clause), Williams v. Taylor, 529 U.S. 362

(2000) (ineffective assistance of counsel), and has even indicated that certiorarl may

be appropriate in a future case to “take up the constitutional issues presented” but

not decided, McClinton v. United States, 148 S. Ct. 2400, 2408 (2023) (concurring

opinion by Justice Sotomayor). The Court has also dismissed writs of certiorari as

having been “improvidently granted” once the Court determined that the important

constitutional issue believed to be the subject of the writ was not actually implicated,

Tacon v. Arizona, 410 U.S. 3851, 352 (1973); Duncan v. Tennessee, 405 U.S. 127, 127

(1972); Massachusetts v. Painten, 389 U.S. 560, 561 (1968), or when it became

uncertain as to the precise federal constitutional issue that was decided by the lower

court, New York v. Uplinger, 467 U.S. 246, 248 (1984). The Court has even, in rare

instances, ordered briefing on a constitutional issue implicated, but not directly

presented, by the question on which certiorari was granted. United States v.

Sineneng-Smith, 590 U.S. 371, 381 (2020) (citing Jennings v. Rodriguez, 580 U.S.

1040 (2016) and Johnson v. United States, 574 U.S. 1069 (2015)). Thus, an important

factor in the certiorari analysis is whether the case provides “an [ Jappropriate vehicle

10

for resolving the important constitutional issues raised by the parties.” Uplinger, 467

U.S. at 249.

This case does just that. It provides an appropriate vehicle for resolving the

important constitutional issue of whether a defendant’s constitutional right under

the “right of cross-examination” component of the Confrontation Clause compels the

pretrial disclosure to the defendant of protected documents that would make crossexamination of a material witness more effective. In addition to being an issue of

great public importance beyond the parties involved here, it is an issue that has not

yet been decided by this Court. See Part I, infra.

II. This Court Has Never Decided the Issue

In 1986, this Court granted certiorari!° to address the same issue raised here;

that being, the important constitutional issue of “whether and to what extent a

State's interest in the confidentiality of its investigative files concerning child abuse

must yield to a criminal defendant's Sixth and Fourteenth Amendment right to

discover favorable evidence.” Pennsylvania v. Ritchie, 480 U.S. 39, 42-43 (1987). Or,

more specifically, whether the “right to conduct cross-examination” component of the

Confrontation Clause of the Sixth Amendment!! compels the disclosure of protected

information! that would make cross-examination of a witness more effective, thus

10 Pennsylvania v. Ritchie, 476 U.S. 1139 (1986).

11 The Confrontation clause provides two types of protection for a criminal defendant: the right to

physically face those who testify against him, and the right to conduct cross-examination. Ritchie, 480

U.S. at 51 (citing Delaware v. Fensterer, 474 U.S. 15, 18-19 (1985)).

12 In Ritchie, the records sought were “protected” by a state statute that prohibited the Children and

Youth Services Department from disclosing its investigative records about abuse of a child. In the case

11

promoting the Confrontation Clause’s purpose of increasing the accuracy of the truthfinding process at trial.!8 However, Ritchie was decided without a majority opinion

on the Confrontation Clause issue.

In a plurality opinion, authored by Justice Powell, and joined by Chief Justice

Rehnquist and Justices White and O’Connor, the four justices held that the

Confrontation Clause did not require the protected information to be provided to the

defendant for use in cross-examination of the witness, with the Court stating:

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, 157 (1970) ("[It] 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,

725 (1968) ("The right to confrontation is basically a trial 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. 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 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 20 (emphasis in original). See also Ohio v. Roberts, supra,

at 73, n. 12 (except in "extraordinary cases, no inquiry into 'effectiveness'

[of cross-examination] is required").

at bar, the records sought are “protected” by a state statute that prohibits the administrative branch

of the state court system from disclosing court records in cases that have been expunged.

18 Ritchie, at 51-52, described the function of the cross-examination component of the Confrontation

Clause as follows: “Of course, the right to cross-examine includes the opportunity to show that a

witness is biased, or that the testimony is exaggerated or unbelievable. United States v. Abel, 469 U.S.

45, 50 (1984): Davis v. Alaska, 415 U.S. 308, 316 (1974). Because this type of evidence can make the

difference between conviction and acquittal, see Napue v. Illinois, 360 U.S. 264, 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 396.”

12

Ritchie, 480 U.S. at 52-538.

Three justices, however, disagreed with the plurality opinion. Justice

Blackmon’s concurring opinion stated that, while the plurality may be correct that

the Confrontation Clause is a “trial right” in that it confers upon a defendant a right

to conduct cross-examination at trial, the inquiry must go further and examine “the

effectiveness of the cross-examination.” Jd. at 62. In Justice Blackmon’s opinion, the

plurality’s opinion that the constitutional right of Confrontation is satisfied “so long

as defense counsel can question a witness on any proper subject of cross-examination”

ignores one of the primary purposes of cross-examination, which is “to call into

question a witness’ credibility.” Id. According to Justice Blackmon, the right of crossexamination under the Confrontation Clause would be “an empty formality” if the

scope of such right is divorced from the fundamental purpose of the effective use of

cross-examination, which is to demonstrate that the witness is biased or cannot

remember the events crucial to their testimony. Jd. And while simple questioning of

the witness will satisfy the purpose of cross-examination in most cases, there may be

cases where the opportunity to cross-examine a witness in an effort to show bias,

without being able to refer to underlying documents that help to confirm such bias,

makes the opportunity to cross-examine “useless” or even “actively harm|[s]” the

defendant, by making it appear to the jury that defense counsel “was engaged in a

speculative and baseless line of attack on the credibility of an apparently blameless

witness” or that “defense counsel was doing nothing more than harassing a blameless

witness.” Jd. at 62-64 (citing Davis v. Alaska, 415 U.S. 308 (1974)). Justice Blackmon

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concluded that the Confrontation Clause prohibits the government from hindering a

defendant’s right to effectively cross-examine a witness at trial through use of some

mechanism—such as a statute that protects the records from disclosure—that apples

during the pretrial stage of the proceeding. Id. at 64-65.

Justice Brennan’s dissent, joined by Justice Marshall, mirrors the logic of

Justice Blackmon. Justice Brennan states that a primary interest secured by the

Confrontation Clause is the right of cross-examination, and that “[a] crucial avenue

of cross-examination ... may be foreclosed by the denial of access to material that

would serve as the basis for this examination.” Id. at 67. According to Justice

Brennan, limiting the Confrontation Clause inquiry to the plurality’s narrow view

that it is only a trial right that prohibits placing limitations on the scope of crossexamination of a witness at trial ignores the true purpose of such right—e/ffective

cross-examination:

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 58, 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.

14 Justice Brennan later reiterated his problem with the narrow interpretation of the Confrontation

Clause by the plurality opinion in Ritchie in his opinion in Kentucky v. Stincer, 482 U.S. 730, 738 n.9

(1987).

14

Id. at 67.

Justice Brennan also points to other cases where the Court had recognized that

the right of cross-examination may be infringed, even absent limitations on

questioning imposed at trial. Id. at 68 (citing Jencks v. United States, 353 U.S. 657

(1957) and United States v. Wade, 388 U.S. 218 (1967)). And he concludes:

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.

Id. at 71.

Justices Stevens and Scalia did not address the Confrontation Clause analysis.

Thus, the Confrontation Clause analysis in Ritchie consists of four justices holding

the Confrontation Clause does not extend to documents sought by the defendant

pretrial, and three justices stating that it does. Because a plurality opinion does not

represent the views of a majority of the Court, the Court is not bound by the

plurality’s reasoning. C7'S Corp. v. Dynamics Corp. of Am., 481 U.S. 69, 81 (1987).

Instead, such plurality opinion is simply a “point of reference for further discussion

of the issue.” Texas v. Brown, 460 U.S. 730, 737 (1983).

In its opinion here, the Sixth Circuit acknowledged that this Court has never

squarely decided this issue and that the plurality opinion in Ritchie is not binding

precedent. [Document 29-2, at Page 7, fn. 3] (“The Supreme Court has not definitively

determined whether the Confrontation Clause creates any right to discovery. In

Ritchie, four justices concluded that the Clause creates no such right, 480 U.S. at 51-

15

54, three justices concluded that the denial of access to certain materials and

information before trial could violate the Confrontation Clause, id. at 61-66

Blackmun, J., concurring in part and concurring in the judgment); id. at 66—72

(Brennan, J., dissenting, joined by Marshall, J.), and two justices did not weigh in.”).

Some lower courts have recognized that Ritchie is only a plurality opinion and

that this Court has never decided this issue by majority opinion. McCray v. Capra,

45 F.4th 634, 646 (2d Cir. 2022) “Other than in Ritchie, the Supreme Court has not

directly addressed how, if at all, the Confrontation Clause affects pretrial discovery.”);

Middlebrooks v. Bell, 619 F.3d 526, 542-48 (6th Cir. 2010); cert. granted, judgment

vacated on other grounds, 566 U.S. 902 (2012) (“Ritchie was only a plurality opinion,

and we cannot predict whether the Supreme Court will extend the Confrontation

Clause to cover discovery requests under some circumstances.”); United States v.

Blue, 340 F. Supp. 3d 862, 867 (D.S.D. 2018) (“[I]t is questionable whether Blue has

a constitutional right to the records under Ritchie. Although Blue argues that access

to the records is necessary to ‘assure him his Sixth Amendment right to confront and

cross-exam his accusers,’ the plurality in Ritchie held that the right to confrontation

is a trial right rather than ‘a constitutionally compelled rule of pretrial discovery.””).

Again, even though this Court granted certiorari on this important

constitutional issue in Ritchie in 1986, the Court did not resolve the issue by majority

opinion. Now, after forty years without a definitive ruling on this issue, it is a proper

time for the Court to again take it up and finally resolve it. This case is an appropriate

vehicle for resolving this important constitutional issue. Uplinger, 467 U.S. at 249.

16

II. Lower Courts Are Split on the Issue and Some Continue to Rely on

Ritchie’s Plurality Opinion

The lower courts are split on the issue of whether the Confrontation Clause

compels the pretrial disclosure of protected documents that would make crossexamination of a witness more effective, thus promoting the Confrontation Clause’s

purpose of increasing the accuracy of the truth-finding process at trial. These

conflicting opinions are an additional compelling reason to grant certiorari. See

Thompson v. Clark, 596 U.S. 36, 41 (2022) (the Court may grant certiorari “to resolve

split” among appellate courts).

Numerous lower courts have followed the plurality opinion in Ritchie and held

that the constitutional right of confrontation is a trial right designed to prevent

improper restriction on the types of questions that defense counsel may ask during

cross-examination and that such right does not apply to seeking documents in pretrial

discovery. McCray v. Capra, 45 F.4th 634 (2d Cir. 2022); United States v. Fattah, 914

F.3d 112, 179 (8d Cir. 2019); United States v. Wright, 866 F.3d 899, 912 n.3 (8th Cir.

2017); Isaac v. Grider, No. 98-6376, 2000 U.S. App. LEXIS 9629, at *21 (6th Cir. May

4, 2000). Some of these courts even cite Ritchie as if it is a majority opinion, neglecting

to note it is only a plurality. Ross v. DA of Allegheny, 672 F.3d 198, 207 (8d Cir. 2012);

Barnes v. Vannoy, 697 F. App'x 799, 805 (6th Cir. 2017); United States v. Isa, 928

F.2d 1800, 13806 (8th Cir. 1991); United States v. Mejia, 448 F.3d 486, 458 (D.C. Cir.

2006); United States v. Gray, No. 94-5776, No. 94-5801, No. 94-5923, No. 94-5932, No.

94-5950, 1996 U.S. App. LEXIS 17528, at *10 (4th Cir. July 17, 1996). One court even

described Ritchie as “clearly indicating” that the Confrontation Clause does not apply

17

to pretrial discovery, Carter v. Chappell, No. 06cv1343 BEN (KSC), 20138 LX 78810,

at *468 (S.D. Cal. Mar. 18, 2018), while another described Ritchie as “[t]he seminal

Supreme Court case in this area,” Grammer v. Easterling, No. 1:11-CV-358, 2013 U.S.

Dist. LEXIS 64111, at *27 (E.D. Tenn. May 3, 2013) (quoting Renusch v. Berghuis, 75

Fed. Appx. 415, 423 (6th Cir. 2003)). Various state courts have even followed Ritchie

as apparent binding law. State v. Pratt, 669 A.2d 562, 570 (Conn. 1995); Oakes v.

Commonwealth, 320 S.W.38d 50, 55 (Ky. 2010); Commonwealth v. Figueroa, 946

N.E.2d 142, 152 (Mass. App. 2011); State v. Lopez, 314 P.3d 236, 239 (N.M. 2018);

Commonwealth v. Morales, 91 A.38d 80, 94 n.11 (Pa. 2014); Martin v. Darnell, 960

S.W.2d 838, 841 (Tex. App. 1997); State v. Fortun-Cebada, 241 P.3d 800, 807 (Wash.

App. 2010).

On the other hand, other lower courts have recognized Ritchie as being a mere

plurality and declined to follow it, opting instead to follow the logic of Justice

Blackmon and Brennan’s opinions that the right to effective cross-examination under

the Confrontation Clause requires the defendant have pretrial access to documents

necessary to show bias of a witness. Wallace v. Price, Civil Action No. 99-231, 2002

U.S. Dist. LEXIS 19978, at *71 (W.D. Pa. Oct. 1, 2002); United States v. Herrick, 2009

U.S. Dist. LEXIS 84719 (D.S.D. Sep. 17, 2009); United States v. Arias, 986 F.3d 798,

799 (8th Cir. 2019). Other courts have held this to be the proper interpretation of the

Confrontation Clause without citing Ritchie. United States v. Garrett, 542 F.2d 23, 27

(6th Cir. 1976) (decided before Ritchie); United States v. Tucker, 249 F.R.D. 58, 67

(S.D.N.Y. 2008) (not citing Ritchie).

18

The logic of Justice Blackmon and Brennan’s interpretation of the

Confrontation Clause has also been adopted by jurists outside the federal system. In

People v. McCray, 12 N.E.3d 1079 (N.Y. 2014), a state appellate judge questioned the

logic of the plurality opinion in Ritchie, noting that “[m]lany states have found the

plurality's reasoning unpersuasive.” Jd. at 1085 (citing various opinions). Applying

New York’s confrontation clause, which he noted was more stringent than its federal

counterpart, Judge Rivera followed the logic of Justice Blackmun and Brennan in his

dissent: “Denial of documents that provide the defense with material to prepare for

cross-examination and impeachment of the complainant in this case of alleged rape

goes to the very core of the right to confront adverse witnesses. Without access to

documents concerning reliability of the witness, the defendant cannot properly

develop and pursue questioning favorable to the defense or address facts and related

issues important to the truth finding process.” Id. at 1084-85. See also People v.

Gissendanner, 399 N.E.2d 924, 927 (N.Y. 1979) (decided prior to Ritchie).

CONCLUSION

The petition for writ of certiorari should be granted.

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