has exercised its jurisdiction even where furtherproceedings in the lower state courts are contem-plated.
at 8. This Court has explained that incertain categories of such cases review has been un-dertaken despite the apparent jurisdictional barrier.FN2. Citing
114 U.S.127 (1885).In most, if not all, of these cases ... additional pro-ceedings would not require the decision of otherfederal questions that might also require review bythe Court at a later date, and immediate rather thandelayed review would be the best way to avoid ‘themischief of economic waste and of delayed justice[.] ...’
326 U.S. 120, 124 (1945). However, respondent contends that the presentcase fits within none of the four exceptions dis-cussed in
420 U.S. at479-483.Specifically, he argues that this Court iswithout authority to review the judgment below be-fore the evidentiary hearing has concluded because,he speculates, the trial court's harmless error de-termination could raise additional federal issues orrender the issue moot. Respondent reasons that thesalutary policies served by avoiding piecemeal lit-igation would be undermined by this Court's prema-ture assumption of jurisdiction (Brief for Respond-ent 7-8). In view of the nature of the state proceed-ing ordered by the Supreme Court of Pennsylvania,and considering that the federal constitutional issue,however decided, will necessarily control the dis-position of the evidentiary hearing, respondent's ar-gument, if accepted, would insure judicial ineffi-ciency and piecemeal litigation.B. Postponement of review would serve none of thepolicy considerations militating against inter-locutory appeals; the very nature of the confidenti-ality claim demands pre-hearing review to avoid ir-reparable injury.The Commonwealth submits that the present con-troversy is precisely the kind of case in which final-ity ought to be given a “practical rather than a tech-nical construction.”
337 U.S. 541, 546 (1949). The uniquefacts of this case provide, in the Commonwealth'sview, sufficient justification for immediate review.1) The scope and application of the Confrontationand Compulsory Process Clauses have been author-itatively construed by the Supreme Court of Pennsylvania, incorrectly in the Commonwealth'sview. 2) The Sixth Amendment issues, had theybeen decided the other way, would have been de-terminative of the only aspect of the decision belowwhich has been contested by the Commonwealth. 3)The mere convening of the state evidentiary hear-ing, under
the conditions imposed by the stateSupreme Court, requires
complete disclos-ure to respondent's counsel of the contents of theconfidential file, an irretrievable loss in terms of theinterests asserted by the Commonwealth. 4) Thereis literally nothing left to be decided, and inter-locutory review would permit this Court to correctwhat the Commonwealth believes to be a highlyprejudicial legal error. The very nature of the con-fidentiality claim, as Pennsylvania and
haveargued in briefs on the merits, demands immediateprotection.
431 U.S. 651, 662 (1977), (double jeopardy protection would be lost if petitioner'sclaim were not reviewable before subsequent ex-posure occurs);
412 U.S. 470,478 (1973), (even if petitioner prevailed statewould still have benefit of non-reciprocal rights, thevery harm which petitioner wishes to avoid by chal-lenging the rule).Respondent is disposed to concede that under
Cox Broadcasting Corp.,
the issue before this Courtwould be appropriate for interlocutory review werea new trial to be awarded after the evidentiary hear-ing (Brief for Respondent 9, 11, 13). Nonetheless,he urges that the Commonwealth must first capitu-1986 WL 728028 (U.S.) Page 3© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.