Lead Opinion
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 investiga
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.
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.
At trial, the main witness against Ritchie was his daughter. In an attempt to rebut her testimony, defense counsel
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.
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.
In light of the substantial and conflicting interests held by the Commonwealth and Ritchie, we granted certiorari.
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,
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,
“[WJhere 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*48 governing state law would not permit him again to present his federal claims for review.” Id., at 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,
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,
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,
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
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.
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,
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.”
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.”
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.
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,
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,
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).
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.
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 675; United States v. Agurs, supra, at 111. Although the eye of an advocate may be helpful to a defendant in ferreting out information, Dennis v. United States,
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
> I — I
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.
Notes
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.
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*44 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:
“(5) A court of competent jurisdiction pursuant to a court order.” Pa. Stat. Ann., Tit. 11, § 2215(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).
The trial judge stated that he did not read “50 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.
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.
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,
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.”
As Justice Stevens’ dissent points out, post, at 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.
The goals of finality would be frustrated, rather than furthered, by these wasteful and time-consuming procedures. Based on the unusual facts of this ease, the justifications for the finality doctrine — efficiency, judicial restraint, and federalism, see Radio Station WOW, Inc. v. Johnson,
Nothing in our decision in United States v. Ryan,
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 533, an interest that would be undermined if all pretrial orders were immediately ap-pealable. 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,
We also reject Ritchie’s suggestion that we should dismiss this action and allow the ease 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 77. See n. 7, supra. To prolong the proceedings on this basis would be incon
This is not to suggest, of course, that there are no protections for pretrial discovery in criminal cases. See discussion in Part IH-B, 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,
“See, e. g., Delaware v. Van Arsdall, supra (denial of right to cross-examine to show bias); Davis v. Alaska,
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.
The pre-1967 eases that mention compulsory process do not provide an extensive analysis of the Clause. See Pate v. Robinson,
See, e. g., Chambers v. Mississippi, supra; Cool v. United States,
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.
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,
See Fed. Rule Crim. Proe. 16(d)(2); Pa. Rule Crim. Proe. 305(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”).
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 reí. John K. Van de Kamp et al.
Concurrence Opinion
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
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,
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,
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
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.
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.”
In United States v. Bagley,
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,
Dissenting Opinion
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,
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.
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.”
The Court in United States v. Wade,
“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
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,
“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,
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
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,
Dissenting Opinion
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,
I
In Cox Broadcasting Corp. v. Cohn,
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,
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.
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 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,
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 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,
*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 , 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*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 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.
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 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.
See Commonwealth v. Blevins,
It is not clear to what extent counsel for the Commonwealth in this ease 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.
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,
Nor does this ease come within the exception of United States v. Nixon,