EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Thursday, May 8, 2014

Confronting Death: 4th Circuit Finds Confrontation Clause Doesn't Apply at Sentencing Selection Phase of Capital Trial

Does the Confrontation Clause apply to hearsay statements that the prosecution seeks to admit at the sentencing selection phase of a capital trial? This was the most interesting question addressed by the Fourth Circuit in its recent opinion in United States v. Umaña, 2014 WL 1613886 (4th Cir. 2014).

Let's cut right to the chase. Umaña argued

that the Confrontation Clause should apply to every fact that the jury finds, even during the sentence selection phase, because facts of guilt and punishment are "constitutionally significant." He argue[d] that jury factfinding of aggravating factors during the sentence selection phase of trial “alters the legally prescribed range and does so in a way that aggravates the penalty."

The Umaña majority disagreed finding that

During the sentence selection phase of a capital trial, the jury exercises discretion in selecting a life sentence or the death penalty, and any facts that the jury might find during that phase do not alter the range of sentences it can impose on the defendant. Under the Federal Death Penalty Act, the jury finds the facts necessary to support the imposition of the death penalty in the guilt and eligibility phases of trial....It is only during these phases that the jury makes "constitutionally significant" factual findings.

Only after finding Umaña death penalty eligible did the jury in this case consider hearsay evidence to assist it in exercising its discretion to select the appropriate sentence. During the selection phase, a jury is not legally required to find any facts. And while it may do so, such facts are neither necessary nor sufficient to impose the death penalty-they merely guide the jury's discretion in choosing a penalty. As the Supreme Court has recently explained:  

Juries must find any facts that increase either the statutory maximum or minimum because the Sixth Amendment applies where a finding of fact both alters the legally prescribed range and does so in a way that aggravates the penalty. Importantly, this is distinct from factfinding used to guide judicial discretion in selecting a punishment "within limits fixed by law."...While such findings of fact may lead judges to select sentences that are more severe than the ones they would have selected without those facts, the Sixth Amendment does not govern that element of sentencing.  Alleyne, 133 S.Ct. at 2161 n. 2.

Accordingly, we conclude that the Confrontation Clause does not preclude the introduction of hearsay statements during the sentence selection phase of capital sentencing.

The dissent, however, strongly disagreed, concluding in relevant part that

The historical developments that led to the Confrontation Clause weigh in favor of its application at all stages of FDPA trials. In the leading case on modern Confrontation Clause doctrine, the Supreme Court explained that the Confrontation Clause right "is most naturally read as a reference to the right of confrontation at common law, admitting only those exceptions established at the time of the founding." Crawford, 541 U.S. at 54. The FDPA sentencing regime did not exist at the time of the founding, nor was there an analogous system. Rather, at the time when the Confrontation Clause was crafted, a death sentence flowed automatically from convictions for certain capital felonies....Thus, there was no separate hearing to determine whether death was appropriate....When capital trials are structured in this way, no defendant receives a death sentence after a trial in which he is denied the Confrontation Clause right, nor is any defendant sentenced to death on the basis of unconfronted accusations of prior crimes. "By the time the Bill of Rights was adopted," "the jury determined which homicide defendants would be subject to capital punishment by making factual determinations."...These factual determinations could only be made in proceedings in which the Confrontation Clause applied in full force. Thus, at the time of the founding, there was no exception to the Confrontation Clause right for capital sentencing.  

Crawford lends further support to the idea that, based on the purpose of the Confrontation Clause, the right to confront adverse witnesses extends to every stage of an FDPA trial. In discussing the history of the clause, the Supreme Court noted that the common law right to confrontation developed in response to abuses in certain infamous trials in England. In these notorious cases, defendants were convicted, and sometimes executed, without the right to examine their accusers....One of "[t]he most notorious instances" of such abuses occurred in the treason trial for Sir Walter Raleigh....In concluding that a judge's reliability ruling cannot substitute for the right to confrontation, the Court noted that "[i]t is not plausible that the Framers' only objection to the trial was that Raleigh's judges did not properly weigh [reliability] factors before sentencing him to death. Rather, the problem was that the judges refused to allow Raleigh to confront [the key government witness] in court."...Thus, part of the reasoning motivating Crawford was the desire to reject any interpretation of the Confrontation Clause which would lead to the same abuses seen in the Raleigh trial. Further, the Court emphasized that what made that infamous case so odious was the lack of a confrontation right before Raleigh was sentenced to death.  

Mr. Umaña now finds himself in the same position as Raleigh, stripped of his right to confront face-to-face those whose words would condemn him to die. Powerful accusations were made against Umaña, and though these accusations were not the basis for the initial guilty verdict, they ultimately helped form the basis for his capital sentence. Further, like Raleigh, Umaña lacked the opportunity to confront his accusers before the death sentence was issued. The distinction between the cases is that Sir Walter Raleigh was sentenced to death after a unitary proceeding in which guilt and penalty were decided simultaneously. In Umaña's case, meanwhile, the judge trifurcated the trial and ensured that any constitutional protections had been severed by the time of stage three, in which a jury weighs whether death is the appropriate sentence. If the judicial proceeding that led to Sir Walter Raleigh's execution is unconstitutional, as it no doubt is, then it is unclear why the same situation would lead to a different result merely because the court artificially cabins the proceeding in which the constitutional abuse occurs.



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