Safeguarding the Opportunity for Effective Cross-Examination: The Confrontation Clause and Pretrial Disclosures

SAFEGUARDING THE OPPORTUNITY FOR EFFECTIVE CROSS-

EXAMINATION: THE CONFRONTATION CLAUSE AND

PRETRIAL DISCLOSURES

Erin O’Neill*

ABSTRACT

The Sixth Amendment’s Confrontation Clause provides criminal defendants

“an opportunity for effective cross-examination” at trial. Defendants—usually

through their attorneys—must be able to question adverse witnesses in person.

But the mere opportunity to ask questions might not be suff‌icient for the defend-

ant to ascertain favorable information from the witness or discredit the witness.

And other criminal-procedure doctrines like the rule of Brady v. Maryland may

not provide the defendant with all the benef‌icial information he needs from a wit-

ness to make his case to the jury.

In Pennsylvania v. Ritchie, a 1987 Supreme Court case, a plurality of Justices

interpreted the Confrontation Clause to apply during trial only. But Justice Brennan,

joined by Justice Marshall, dissented and contended that the Confrontation Clause

should apply to events before trial, not just to cross-examination during trial. In their

view, the Confrontation Clause should have provided the Ritchie defendant access to

some “material information” from a testifying witness pretrial in order to effectively

cross-examine that witness. This Note argues that Justices Brennan and Marshall

were correct—criminal defendants should be able to assert their Confrontation

Clause right to seek access to some pretrial information from testifying witnesses.

Trial judges could then review the requested information in camera to ensure that

revealing it to the defendant would not violate the witness’s privilege. In this way,

interpreting the Confrontation Clause to apply before trial (as well as during trial)

would provide criminal defendants with a fully effective opportunity to cross-examine

witnesses while safeguarding witness privilege and the government’s interest in main-

taining witness privacy.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 462

I. THE CONFRONTATION CLAUSE, BRADY V. MARYLAND, AND PRETRIAL

DISCOVERY IN CRIMINAL CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 464

A. The Confrontation Clause’s Origin and Development . . . . . . . 465

B. Brady v. Maryland’s Requirement that the Government Disclose

Exculpatory Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 467

* Georgetown University Law Center, J.D. 2020. Thank you to the ACLR team for their careful editing and

feedback. © 2021, Erin O’Neill.

461

C. Pennsylvania v. Ritchie and Pretrial Discovery Related to

Cross-Examination . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 469

II. THE CONFRONTATION CLAUSE AND THE BRADY RULE AFTER RITCHIE . . . . 473

A. The Confrontation Clause in Federal Courts of Appeals After

Ritchie . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 473

1. Circuits with No Requirement of In Camera Review of

Requested Cross-Examination Materials . . . . . . . . . . . . . 473

2. The Eighth Circuit’s Requirement of In Camera Review to

Determine If the Confrontation Clause Requires Disclosure

of Records . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 475

B. The Confrontation Clause in State Courts of Last Resort After

Ritchie . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 478

III. THE CURRENT UNDERSTANDING OF CONFRONTATION CLAUSE PRETRIAL

DISCLOSURES SHOULD BE BROADENED TO SAFEGUARD CRIMINAL

DEFENDANTS’ OPPORTUNITY FOR EFFECTIVE CROSS-EXAMINATION . . . . . 479

A. The Need for In Camera Review of Requested Cross-

Examination Materials Under the Confrontation Clause Despite

the Government’s Compelled Brady Disclosures . . . . . . . . . . . 480

B. The Need for Pretrial Disclosure of Confrontation Clause

Materials to Guarantee an Opportunity for Effective Cross-

Examination, Especially When the Witness Opens the Door to a

Line of Questioning. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 481

C. An In Camera Review of Requested Cross-Examination

Materials Can Balance the Interests of Criminal Defendants,

Witnesses, and the Government . . . . . . . . . . . . . . . . . . . . . . . 483

D. A Materiality Requirement for Requested Confrontation Clause

Materials Can Avoid Overburdening Trial Courts. . . . . . . . . . 484

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 486

INTRODUCTION

Many Americans’ knowledge of cross-examination in criminal trials comes

from its depiction in television shows, books, and movies. The scenes range from

somber to amusing: Atticus Finch, Elle Woods, Lieutenant Daniel Kaffee, and

Vinny Gambini artfully (or not-so-artfully) persuade an adverse witness to make

an emotional statement that exculpates the criminal defendant.

1

The right to cross-

examination comes from the Sixth Amendment’s Confrontation Clause, which

states, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.”

2

The f‌ictional courtroom scenes,

although dramatic, do not show the arduous discovery process that precedes cross-

1. See HARPER LEE, TO KILL A MOCKINGBIRD 242–52 (1960); LEGALLY BLONDE (Metro-Goldwyn-Mayer

Pictures 2001); A FEW GOOD MEN (Columbia Pictures 1992); MY COUSIN VINNY (Twentieth Century Fox 1992).

2. U.S. CONST. amend VI.

462 AMERICAN CRIMINAL LAW REVIEW [Vol. 58:461