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Corey Bushle, Associate Member, University of Cincinnati Law Review
In August of 2019, the Eighth Circuit Court of Appeals held that the Confrontation Clause of the Sixth Amendment entitles a defendant to compelled discovery when discovery will bolster the defendant’s cross examination of an adverse witness. In doing so, the Court unnecessarily created a Circuit split and contradicted Supreme Court precedent which held that the Confrontation Clause does not include a right to constitutionally compelled pretrial discovery. In the Eighth Circuit Case, United States v. Arias, the Defendant made sound arguments for why the discovery he sought was necessary. However, those arguments should have been couched in the Due Process Clause instead of the Confrontation Clause.
Part II of this article will discuss the decision in Arias. The article will compare Arias to the Supreme Court’s holding in Pennsylvania v. Ritchie, a nearly identical case decided before Arias, through which the Supreme Court reached the opposite result of the Eighth Circuit. In Part III, this article will conclude that the Arias decision reached the right result—but for the wrong reasons.
A. United States v. Arias: The Confrontation Clause entitles a defendant to a victim’s medical records when useful for cross examination.
The United States charged Alan Arias with three counts of sexual abuse of his minor cousin. Before trial, Arias demanded access to the victim’s mental health records from a facility where the victim had allegedly been treated. The trial court denied Arias’s request, deeming it a “fishing expedition” and finding that the records were privileged. Instead, the court limited Arias’s questions to the victim’s history with bipolar disorder—occurring prior to the alleged assault—to attack the reliability of the victim’s testimony. At trial, the victim testified that a doctor diagnosed her with anxiety and PTSD after the alleged assault. Arias objected, arguing that he could not effectively impeach the credibility of the victim’s testimony without the mental health records he requested before trial, and that the state opened the door by eliciting testimony about the victim’s post-assault mental state. The court overruled Arias’s objections, and the jury convicted Arias of all three counts.
On appeal, Arias argued that the trial court’s denial of his request for the mental health records and subsequent allowance of testimony about the victim’s mental health violated his rights under the Confrontation Clause of the Sixth Amendment. Allowing the victim to testify that a professional diagnosed her with PTSD after the alleged assault, Arias contended, substantially bolstered the victim’s credibility and made it seem more likely that an assault took place. Without access to the psychiatric records, Arias could not challenge the veracity of the diagnosis on cross examination. Moreover, Arias claimed, the trial court’s pretrial ruling allowing cross examination about the victim’s prior mental health was nonresponsive to Arias’s concerns about the PTSD diagnosis. The pretrial ruling was focused on the theory that the victim’s condition tainted her account of the alleged assault, not on the assault’s effect on the victim’s mental health.
The Eight Circuit Court of Appeals agreed with Arias. The court held that while the trial court’s pretrial denial was not erroneous, the victim’s trial testimony about her post-assault mental health triggered the Confrontation Clause because the records may have contained information necessary for Arias to effectively cross examine the victim. However, since no court had ever examined the records in question, the Court was unable to determine the extent to which the trial court’s denial prejudiced Arias. Accordingly, the Court of Appeals remanded the case and ordered the trial court to perform an in camera (confidential) review of the mental health records to determine if the court’s failure to give Arias access was harmless.
Circuit Judge Colloton, dissenting from the majority in Arias, argued that the Confrontation Clause does not include a right to compelled discovery. According to the dissent, Confrontation Clause cases usually fall into two categories: the improper admission of hearsay statements and court-imposed limitations on the scope of cross examination. Since the trial court never forbade Arias from cross examining the victim about her PTSD diagnosis, the dissent argued that the pretrial order did not violate Arias’s rights under the Confrontation Clause.
B. Pennsylvania v. Ritchie: Ambiguity over the Scope of the Confrontation Clause.
The Supreme Court considered whether the Confrontation Clause includes a right to compelled discovery of confidential records in Pennsylvania v. Ritchie. The Defendant, George Ritchie, was charged with sexual assault of a minor and tried to compel discovery of the victim’s records—much like the defendant in Arias. The victim, Ritchie’s daughter, alleged that Ritchie had assaulted her multiple times over a four year period, and that she reported the assaults to the police. Pursuant to a Pennsylvania state law, the police then reported the incidents to Children and Youth Services (“CYS”). Ritchie served a subpoena on CYS for the files related to the alleged assaults. CYS refused to turn over the documents, claiming they were privileged under state law.
Ritchie petitioned the trial court to compel discovery, arguing that the file might contain exculpatory evidence, potential witnesses, or medical records that could help him effectively cross examine the victim. The court denied Ritchie’s motion without reviewing the documents he sought, instead accepting CYS’s assertions that the documents contained no medical records. At trial, although the victim testified extensively to the past incidents, the judge placed no limitations on the scope of Ritchie’s cross examination of the victim. The jury convicted Ritchie on all counts.
On appeal, the Pennsylvania Supreme Court vacated Ritchie’s conviction, holding that he was entitled to have his lawyer fully review the records for useful evidence under the Confrontation Clause. The United States Supreme Court granted certiorari to resolve the balance between the State’s interest in keeping the CYS records confidential and Ritchie’s rights under the Confrontation Clause.
A plurality of Justices joined the portion of Justice Powell’s opinion dealing with the Confrontation Clause. The plurality rejected the Pennsylvania Supreme Court’s broad interpretation that the Confrontation Clause provides a right of pretrial discovery. The Court summarized the Confrontation Clause as giving two protections for a criminal defendant: first, the right to physically face those who testify against him; and second, the right to cross examine. While Ritchie claimed that denying him access to the CYS records impeded his ability to cross examine the victim more effectively than he otherwise could, the Court rejected this argument. According to the plurality, the right to confrontation is a trial right which prevents improper restrictions on the scope of cross examination, not the right to compel discovery of any and all information that might be useful in contradicting unfavorable testimony. Since the trial court made no restrictions on the scope of cross examination, the plurality found that the Pennsylvania Supreme Court erred in holding that denying Ritchie access to the CYS files violated his rights under the Confrontation Clause.
The Court’s analysis did not end there. While Ritchie found no relief in the Confrontation Clause, a majority of the Court held that the Due Process Clause of the Fourteenth Amendment entitled Ritchie to have the trial judge conduct an in camera review of the CYS records. An in camera review, the Court reasoned, would effectively balance the State’s confidentiality interest with Ritchie’s right to discover material evidence. The trial judge, the Court said, could privately determine if the files contain any exculpatory evidence, rather than allowing Ritchie himself unrestricted access to the victim’s confidential files.
C. Post-Ritchie, other Circuit Courts hold that the Confrontation Clause gives no right to discovery.
After Ritchie, several Circuit Courts held that that the Confrontation Clause does not provide a right to compelled discovery. In United States v. Fattah, a case presenting an analogous issue to Arias, the trial court directly applied the in camera procedure set forth in Ritchie to review a prosecuting witness’s mental health records which the defendant requested. The witness, who was reportedly diagnosed with bipolar disorder, voluntarily submitted his mental health records for the court to review. The court found no evidence in the records that it deemed material for the case and quashed the defendant’s subpoena for the records.
On appeal, the defendant argued that the trial court’s in camera review of the mental health records violated his rights under the Confrontation Clause by impeding his ability to cross examine the witness. The Third Circuit Court of Appeals rejected this argument since it was the very same point considered and rejected by the Supreme Court inRitchie.
The Eighth Circuit’s decision in Arias reached the right result for the wrong reason. As the dissent in Arias pointed out, the Court in Ritchie already squarely rejected the argument that the Confrontation Clause entitles a criminal defendant to any and all information that might be useful to cross examination. Nonetheless, the majority remanded the case back for the District Court to perform an in camera review, solely on Confrontation Clause grounds. While the Court’s desire to ensure that a Defendant has a fair opportunity to effectively cross examine an adverse witness was commendable, it did not have to resort to such a dramatic reinterpretation of the Confrontation Clause to achieve that result.
The Confrontation Clause acts as a shield for criminal defendants against the prosecution. Expanding its meaning to use it as a sword against the credibility of the prosecution’s witnesses not only opens the door to prosecution-friendly interpretations but also creates a confusing overlap with the Brady line of Due Process cases. The Supreme Court has observed that the Confrontation Clause is chiefly intended to prevent the use of testimonial evidence—testimony in the form of a narrative with no opportunity to cross examine the witness—and ex parte examinations as evidence against a criminal defendant.
In Crawford v. Washington, the Supreme Court overruled a precedent that allowed prosecutors to use testimonial evidence if the witness was not available and the message contained “indicia of reliability.” Recounting the historical basis for the Clause that dated back to pre-colonial English Common Law, Justice Scalia wrote that the only acceptable indicia of reliability was confrontation—the opportunity for cross examination by the defendant. A judge’s lone determination of reliability could not suffice to satisfy a defendant’s interest in cross examination.
While Ritchie might be considered a prosecution-friendly ruling, as it restricts a defendant’s ability to compel discovery of information, the decision in Crawford shows that a traditional, strict reading of the Sixth Amendment may be best for criminal defendants. Before Crawford, prosecutors could wholesale admit damaging testimonials in lieu of direct examination of witnesses in court, including accusations by accomplices of the accused. Here, a “flexible” reading of the Confrontation Clause proved to be disastrous for criminal defendants and the notion of a fair trial. Giving in to a flexible reading of the provision for the benefit of defendants could prove perilous if it opens the door for similarly generous readings for prosecutors.
Although the Confrontation Clause’s main guarantee is the right to cross examine, that does not mean that any claimed right related to cross examination must fall under the Confrontation Clause. Ariaswas ultimately a case about the right of discovery—a right which falls squarely under the protection of the Due Process Clause of the Fifth and Fourteenth Amendments. Had Arias made the Due Process argument and requested the judge perform an in camera review of the records on those grounds, rather than repeating Ritchie’s failed Confrontation Clause argument, it seems likely that he would have succeeded. However, by accepting Arias’s Confrontation Clause argument in direct contradiction of the plurality’s opinion of Ritchie, the Eighth Circuit created a Circuit split over settled law.
As the Supreme Court stated in Ritchie, the Confrontation Clause is a trial right; it guarantees that criminal defendants are not convicted based on hearsay and unrebutted testimonial evidence, without the chance to cross examine witnesses, or to exclude evidence for which no confrontation is possible. The Eighth Circuit accepted the argument that the right to confront witnesses includes the right to discover anything that might bolster the confrontation of witnesses. While, theoretically, unlimited compelled discovery would certainly benefit criminal defendants, that right cannot be found in the Confrontation Clause. Instead, defendants should look to the Bradyline of Due Process cases in order to compel discovery of material exculpatory evidence.
Pennsylvania v. Ritchie, 480 U.S. 39 (1987).
United States v. Arias, 936 F.3d 793 (8th Cir. 2019).
480 U.S. 39 (1987).
Arias, 936 F.3d at 793.
480 U.S. 39 (1987).
Id. at 43.
Id. at 44.
Id. at 45.
Id. at 46.
See e.g. United States v. Fattah, 914 F.3d 112, 180 (3d Cir. 2019); United States v. Hargrove, 382 Fed.Appx. 765, 775 (10th Cir. 2010) (trial court’s refusal to order a government witness to produce mental health records did not violate defendant’s confrontation rights); United States v. Sardinas, 386 Fed.Appx. 927, 940-41 (11th Cir. 2010) (Defendant’s confrontation rights were not violated by failing to provide him with information about a criminal informant to use on cross examination).
Fattah, 314 F.3d at 178.
Id. at 179.
541 U.S. 36, 36 (2004).