Cite as: 518 U. S. 152 (1996)
Ginsburg, J., dissenting
In sum, the record shows, beyond genuine debate, that Gray was not afforded a "meaningful" opportunity to defend against the additional Sorrell murders evidence. The fatal infection present in Gardner infects this case as well: Defense counsel were effectively deprived of an opportunity to challenge the "accuracy or materiality" of information relied on in imposing the death sentence. Gardner, 430 U. S., at 356. Unexposed to adversary testing, the Sorrell murders evidence "carrie[d] no assurance of reliability." App. 351. The "debate between adversaries," valued in our system of justice for its contribution "to the truth-seeking function of trials," Gardner, 430 U. S., at 360, was precluded here by the prosecutor's eve-of-sentencing shift, and the trial court's tolerance of it. To hold otherwise "would simply be to ignore actualities." Powell v. Alabama, 287 U. S. 45, 58 (1932).12
fronting the defense: "We are not prepared to try the Sorrell murder today." 4 J. A. 2065. The Court's suggestion that "this plea [was] insufficient to have legal effect in court," ante, at 167, n. 4, is puzzling. Neither the Court, the Fourth Circuit, nor the Commonwealth has cited any Virginia authority for this proposition. Cf. Smith v. Estelle, 602 F. 2d 694, 701, n. 8 (CA5 1979) ("the state points us to no rule of Texas law saying that moving for a continuance is the only way to object to surprise"), aff'd on other grounds, 451 U. S. 454 (1981). Given the potency of the evidence in question, it is difficult to comprehend the Court's speculation that defense counsel, for "tactical" reasons, may have wanted only exclusion and not more time. Compare ante, at 169, with Tr. of Oral Arg. 11 (counsel for petitioner urged that if a trial judge is asked, "please stop this from happening . . . , it violates my [client's] right to a fair trial," the existence of that right should not turn on whether counsel next says, "please exclude this evidence, as opposed to please give me more time").
12 Weatherford v. Bursey, 429 U. S. 545 (1977), featured by the Court, see ante, at 168, 169-170, hardly controls this case. There, the State's witness, and not the prosecutor, misled defense counsel. 429 U. S., at 560. Furthermore, Weatherford did not involve the penalty phase of a capital trial, a stage at which reliability concerns are most vital. Finally, the defendant in Weatherford did not object at trial to the surprise witness, and did not later show how he was prejudiced by the surprise. Id., at 561.
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