Tuesday, August 30, 2016
Shaakirrah Sanders (University of Idaho - College of Law) has posted The Value of Confrontation as a Felony Sentencing Right (Widener Law Journal, Vol. 25, No. 103, 2016) on SSRN. Here is the abstract:
This Article advocates recognition of the Sixth Amendment's Confrontation Clause as a felony sentencing right. Williams v. New York -- the most historic case on the issue of confrontation rights at felony sentencing -- held that cross-examination was not required to test the veracity of information presented at sentencing hearings, should constitute the beginning of the debate on the issue of confrontation rights at felony sentencing, not the end. Williams was decided before incorporation of the Sixth Amendment's Confrontation Clause and reflects a sentencing model that assumes judicial authority to consider un-cross-examined testimony for purposes of fixing the punishment. This assumption may be unwarranted in light of recent jurisprudence on founding era criminal procedure rights at felony sentencing. Moreover, the standard that applied to confrontation rights at the time of Williams has been reformed and establishes that where testimonial statements are at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation. While this jurisprudence has only been applied during the trial, it can be practically and efficiently applied at felony sentencing.
The Sixth Amendment's other clauses give reason to value confrontation as a felony sentencing right. The structurally identical Jury Trial and Counsel Clauses have rejected the “trial-right-only” approach to Sixth Amendment rights. The Counsel Clause applies to all “critical stages” of the “criminal prosecution” which includes sentencing. The Court recently expanded the Jury Trial Clause to any fact that increased the statutory maximum or minimum punishment. In light of this jurisprudence and the growing importance of sentencing hearings, a framework should and can be established to distinguish between sentencing evidence that should be cross-examined and sentencing evidence that should not be cross-examined. This Article concludes that confrontation should apply to evidence that is material to punishment and where cross-examination will assist in assessing truth and veracity.