Volume 58
Issue 2
Spring '21

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

Written By: 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 defendant 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 witness 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 maintaining witness privacy. 

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