182
Ginsburg, J., dissenting
U. S. 274, 277 (1876). A pro forma opportunity will not do.10
Due process demands an opportunity to be heard "at a meaningful time and in a meaningful manner." Armstrong v. Manzo, 380 U. S. 545, 552 (1965); see In re Oliver, 333 U. S. 257, 275 (1948) (defendant must be afforded "a reasonable opportunity to meet [the charges against him] by way of defense or explanation"); Morgan v. United States, 304 U. S. 1, 18 (1938) ("The right to a hearing embraces not only the right to present evidence but also a reasonable opportunity to know the claims of the opposing party and to meet them."). Absent a full, fair, potentially effective opportunity to defend against the State's charges, the right to a hearing would be "but a barren one." Ibid.; see Mullane v. Central Hanover Bank & Trust Co., 339 U. S. 306, 315 (1950) ("process which is a mere gesture is not due process").
In Gardner v. Florida, 430 U. S. 349 (1977), the principal decision relied on by the District Court, we confirmed that the sentencing phase of a capital trial "must satisfy the requirements of the Due Process Clause." Id., at 358 (plurality opinion). Gardner presented the question whether a defendant was denied due process when the trial judge sentenced him to death relying in part on a presentence report, including a confidential portion not disclosed to defense counsel. Counsel's deprivation of an "opportunity . . . to challenge the accuracy or materiality" of the undisclosed information, id., at 356, the Gardner plurality reasoned, left a manifest risk that "some of the information accepted in confidence may [have been] erroneous, or . . . misinterpreted,"
10 Cf. In re Gault, 387 U. S. 1, 33 (1967) (notice to parents the night before a juvenile delinquency hearing was constitutionally inadequate; due process requires that notice "be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded"); Powell v. Alabama, 287 U. S. 45, 58 (1932) (defense counsel appointed the morning of trial could not satisfy the constitutional requirement because counsel lacked opportunity to investigate the case; Court observed that "[t]o decide otherwise, would simply be to ignore actualities").
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