Does a state deprive condemned prisoners of due process when, to defeat a challenge to the state's method of execution, state officials rely on and the state courts credit testimony regarding privileged communications that the prisoners could not effectively challenge through cross-examination or otherwise because they were barred from reviewing the privileged material and from access to the witnesses covered by the privilege?

QUESTION PRESENTED Condemned prisoners facially challenging a state’s method of execution must prove both that the state’s method will very likely cause severe pain and that there is an available and feasibly implemented alternative that will substantially reduce the prisoners’ risk of suffering. The Tennessee Supreme Court rejected petitioners’ challenge to Tennessee’s three-drug method of execution solely because it concluded that petitioners had failed to demonstrate an available alternative. In reaching that conclusion, the Tennessee Supreme Court credited testimony from state officials that petitioners’ proposed drug was not reasonably available. That testimony was based on conversations state procurement officials had with potential suppliers of the alternative drug. Those conversations were shielded from discovery by the Tennessee courts under the state’s execution secrecy statute. So the petitioners’ claim was deemed to have failed based exclusively on government officials’ testimony, the basis of which Tennessee barred petitioners from seeing, exploring, or challenging through cross-examination. The question presented is: Does a state deprive condemned prisoners of due process when, to defeat a challenge to the state’s method of execution, state officials rely on and the state courts credit testimony regarding privileged communications that the prisoners could not effectively challenge through cross-examination or otherwise because they were barred from reviewing the privileged material and from access to the witnesses covered by the privilege? @)