gress amended the alternative minimum tax provisions in 1982, it implicitly accepted the teaching of Gentile v. Commissioner, 65 T. C. 1 (1975), that gambling is not a trade or business. Groetzinger would have had no problem under the 1982 amendments.

3

One could argue, I suppose, that although gambling is not a trade or business under the 1982 amendments, it was in 1978, the tax year at issue here. But there is certainly no indication that Congress intended in 1982 to alter the status of gambling as a trade or business. Rather, Congress was correcting an inequity that had arisen because gambling is not a trade or business, just as 40 years earlier Congress had, by enacting the predecessor to 26 U. S. C. §212, corrected an inequity that became apparent when this Court held that a full-time investor is not engaged in a trade or business. See Higgins v. Commissioner, 312 U. S. 212 (1941). In neither case did Congress attempt to alter the then-prevailing definition of trade or business, nor do I think this Court should do so now to avoid a harsh result in this case. In any event, the Court should recognize that its holding is a sport that applies only to a superseded statute and not to the tax years governed by the 1982 amendments. Accordingly, I dissent.

nandez, 292 U. S. 62, 68 (1934), absent a clear declaration of intent by Congress." United States v. Skelly Oil Co., 394 U. S. 678, 684 (1969). There is no such clear declaration of intent accompanying the 1982 amendments. The Commissioner had acquiesced in Gentile. See 1980-2 Cum. Bull. 1, 4, n. 39.

'While the consequences of accepting the Commissioner's position in this case may be harsh to the respondent-which is no doubt why Congress amended the relevant Code provisions in 1982-I find the Court's characterization of the result as a tax on gambling losses, ante, at 35, somewhat misleading. If gambling is not a trade or business, the practical effect of the minimum tax on tax preference items is to reduce the deduction allowed for gambling losses from an amount equal to 100% of gambling winnings to some lesser percentage of gambling winnings.

Syllabus

PENNSYLVANIA v. RITCHIE

CERTIORARI TO THE SUPREME COURT OF PENNSYLVANIA No. 85-1347. Argued December 3, 1986-Decided February 24, 1987 Respondent was charged with various sexual offenses against his minor daughter. The matter was referred to the Children and Youth Services (CYS), a protective service agency established by Pennsylvania to investigate cases of suspected child mistreatment and neglect. During pretrial discovery, respondent served CYS with a subpoena, seeking access to the records related to the immediate charges, as well as certain earlier records compiled when CYS investigated a separate report that respondent's children were being abused. CYS refused to comply with the subpoena, claiming that the records were privileged under a Pennsylvania statute which provides that all CYS records must be kept confidential, subject to specified exceptions. One of the exceptions is that CYS may disclose reports to a "court of competent jurisdiction pursuant to a court order." At an in-chambers hearing in the trial court, respondent argued that he was entitled to the information because the CYS file might contain the names of favorable witnesses, as well as other, unspecified exculpatory evidence. Although the trial judge did not examine the entire CYS file, he refused to order disclosure. At the trial, which resulted in respondent's conviction by a jury, the main witness against him was his daughter, who was cross-examined at length by defense counsel. On appeal, the Pennsylvania Superior Court held that the failure to disclose the daughter's statements contained in the CYS file violated the Confrontation Clause of the Sixth Amendment. The court vacated the conviction and remanded for further proceedings to determine whether a new trial should be granted. On the State's appeal, the Pennsylvania Supreme Court held that, by denying access to the CYS file, the trial court order had violated both the Confrontation and the Compulsory Process Clauses of the Sixth Amendment, and that the conviction must be vacated and the case remanded to determine if a new trial was necessary. The court concluded that defense counsel was entitled to review the entire file for any useful evidence.

Held: The judgment is affirmed in part and reversed in part, and the case is remanded.

509 Pa. 357, 502 A. 2d 148, affirmed in part, reversed in part, and remanded.

JUSTICE POWELL delivered the opinion of the Court as to Parts I, II, III-B, III-C, and IV, concluding that:

1. This Court does not lack jurisdiction on the ground that the decision below is not a "final judgment or decree," as required by 28 U. S. C. § 1257(3). Although this Court has no jurisdiction to review an interlocutory judgment, jurisdiction is proper where a 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. Here, the Sixth Amendment issue will not survive for this Court to review regardless of the outcome of the proceedings on remand. The Sixth Amendment issue has been finally decided by the highest court of Pennsylvania, and unless this Court reviews that decision, the harm that the State seeks to avoid-the disclosure of the confidential file-will occur regardless of the result on remand. Pp. 47-50.

2. Criminal defendants have the right under the Compulsory Process Clause to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt. However, this Court has never held that the Clause guarantees the right to discover the identity of witnesses, or to require the government to produce exculpatory evidence. Instead, claims such as respondent's traditionally have been evaluated under the broader protections of the Due Process Clause of the Fourteenth Amendment. Compulsory process provides no greater protections in this area than those afforded by due process, and thus respondent's claims more properly are considered by reference to due process. Pp. 55-56.

3. Under due process principles, 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. Evidence is material only if there is a reasonable probability that, had the evidence been disclosed, the re-. sult of the proceeding would have been different. Although the public interest in protecting sensitive information such as that in CYS records is strong, this interest does not necessarily prevent disclosure in all circumstances. Because the Pennsylvania Legislature contemplated some use of CYS records in judicial proceedings, there is no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determined that the information was "material" to the accused's defense. The Pennsylvania Supreme Court thus properly ordered a remand for further proceedings. Respondent 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 CYS file contains no such information, or if the nondisclosure is harmless beyond a reasonable doubt, the trial court will be free to reinstate the prior conviction.

Pp. 57-58.

4. The Pennsylvania Supreme Court erred in holding that defense counsel must be allowed to examine the confidential information. A defendant's right to discover exculpatory evidence does not include the unsupervised authority to search the State's files and make the determination as to the materiality of the information. Both respondent's and the State's interests 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. To allow full disclosure to defense counsel in this type of case would sacrifice unnecessarily the State's compelling interest in protecting its child abuse information. Pp. 59-61.

JUSTICE POWELL, joined by THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE O'CONNOR, concluded in Part III-A that the Pennsylvania Supreme Court erred in holding that the failure to disclose the CYS file violated the Confrontation Clause. There is no merit to respondent's claim that by denying him access to the information necessary to prepare his defense, the trial court interfered with his right of cross-examination guaranteed by the Clause. Respondent argued 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. However, the Confrontation Clause is not a constitutionally compelled rule of pretrial discovery. The right of confrontation is a trial right, guaranteeing an opportunity for effective cross-examination, not cross-examination that is effective in whatever way and to whatever extent the defense might wish. Pp. 51-54.

JUSTICE BLACKMUN concluded that the Confrontation Clause may be relevant to limitations placed on a defendant's pretrial discovery. There may well be a confrontation violation if, as here, a defendant is denied pretrial access to information that would make possible effective crossexamination of a crucial prosecution witness. A State cannot avoid Confrontation Clause problems simply by deciding to hinder the defendant's right to effective cross-examination, on the basis of a desire to protect the confidentiality interests of a particular class of individuals, at the pretrial, rather than at the trial, stage. However, the procedure the Court has set out for the lower court to follow on remand is adequate to address any confrontation problem. Pp. 61-66.

POWELL, J., 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, in which REHNQUIST, C. J., and WHITE, BLACKMUN, and O'CONNOR, JJ., joined, and an opinion with respect to Part III-A, in which REHNQUIST, C. J., and WHITE and O'CONNOR, JJ., joined. BLACKMUN, J., filed an opinion concurring in part and concurring in the judgment, post, p. 61. BRENNAN, J., filed a dissenting opinion, in which MARSHALL, J., joined,

post, p. 66. STEVENS, J., filed a dissenting opinion, in which BRENNAN, MARSHALL, and SCALIA, JJ., joined, post, p. 72.

Edward Marcus Clark argued the cause for petitioner. With him on the briefs was Robert L. Eberhardt.

John H. Corbett, Jr., by invitation of the Court, 478 U. S. 1019, argued the cause and filed a brief as amicus curiae in support of the judgment below. With him on the brief was Lester G. Nauhaus.*

JUSTICE POWELL 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

*Briefs of amici curiae urging reversal were filed for the State of California et al. by John K. Van de Kamp, Attorney General, Steve White, Chief Assistant Attorney General, Arnold Overoye, Assistant Attorney General, Joel Carey, Supervising Deputy Attorney General, and Karen Ziskind, Deputy Attorney General, and by the Attorneys General for their respective States as follows: Duane Woodard of Colorado, Joseph Lieberman of Connecticut, Corinne Watanabe, Acting Attorney General of Hawaii, Neil F. Hartigan of Illinois, Linley E. Pearson of Indiana, David Armstrong of Kentucky, William J. Guste, Jr., of Louisiana, James E. Tierney of Maine, Hubert H. Humphrey III of Minnesota, Edwin L. Pittman of Mississippi, Michael Greely of Montana, Stephen E. Merrill of New Hampshire, Lacy H. Thornburg of North Carolina, Mike Turpen of Oklahoma, LeRoy S. Zimmerman of Pennsylvania, Mike Cody of Tennessee, David L. Wilkinson of Utah, Jeffrey L. Amestoy of Vermont, William A. Broadus of Virginia, Kenneth O. Eikenberry of Washington, Charlie Brown of West Virginia, and Archie G. McClintock of Wyoming; for the County of Allegheny, Pennsylvania, on behalf of Allegheny County Children and Youth Services by George M. Janocsko and Robert L. McTiernan; for the Appellate Committee of the District Attorneys Association of California by Ira Reiner, Harry B. Sondheim, and Arnold T. Guminski; for the Pennsylvania Coalition Against Rape et al. by Nancy D. Wasser; and for the Sunny von Bulow National Victim Advocacy Center, Inc., et al. by Frank Gamble Carrington, Jr., David Crump, and Ann M. Haralambie.