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October 13, 2011

Arkansas Supreme Court applies Confrontation Clause to jury sentencing proceeding

As detailed in this local press report, a "defendant who has pleaded guilty to a crime does not lose the right to confront witnesses during sentencing proceedings before a jury, the Arkansas Supreme Court said today in overturning a man’s life sentence for rape." Here are the basics of the ruling:

The jury was allowed to view a video of a state police investigator interviewing the victim.  On appeal, Vankirk, 31, argued that his right of confrontation guaranteed by the U.S. and state constitutions was violated when the trial judge admitted video testimony from a witness who was not present in the courtroom and could not be cross-examined....

In its unanimous opinion today, the Arkansas Supreme Court [explained that] cases [cited by the state] involved sentencing by a judge, not a jury, so they were significantly different from Vankirk’s case.

The court noted that in the case United States v. Mills, which did involve sentencing by a jury, a federal district judge in California ruled that a defendant had the right to confront witnesses during the sentencing phase of a capital murder trial.

Vankirk’s case did not involve the death penalty, but “what constitutional protections apply should not be based on the available punishment,” the state high court said.  “We are convinced that the right of confrontation, guaranteed by both the Sixth Amendment and Article 2, Section 10 (of the Arkansas Constitution), extends to appellant’s proceeding before a jury,” Justice Donald Corbin wrote in the opinion.

The court also said the error was not harmless because the video included testimony that the victim was younger at the time of the first rape than the state had alleged. “This comment alone, which was uncorroborated and went unchallenged because Vankirk was not allowed to question (the victim), was extremely prejudicial,” Corbin wrote in the opinion.

I am very thankful to reader who alerted me to the very interesting opinion in Van Kirk v. Arkansas, No. CR 11-182 (Ark. Oct. 13, 2011) (available here). Here is one of many notable passages from the opinion in Van Kirk:

The State ... focuses on the United States Supreme Court case of Williams v. New York, 337 U.S. 241 (1949), to support its conclusion that the right of confrontation does not apply in sentencing proceedings.  Williams, however, does not stand for that explicit proposition....  We find the State’s reliance on Williams to be unpersuasive.  First, Williams involved a challenge under the Due Process Clause, not the Confrontation Clause. And, second, it was decided more than fifteen years prior to the Pointer decision that made the Confrontation Clause applicable to the states.  Moreover, the issue as framed in Williams differs significantly from the one presented to us today in that Williams involved a judge and what information he could consider in sentencing; whereas, here, there was a jury impaneled to weigh evidence and impose punishment.

We believe that the federal district court’s decision in United States v. Mills, 446 F. Supp. 2d 1115 (C.D. Cal. 2006), where the court concluded that the constitutional right to confrontation applies to both phases of federal-capital sentencing to be more persuasive. We are cognizant of the fact that Mills is a death-penalty case but find the court’s analysis of the constitutional protections afforded during sentencing to be noteworthy nonetheless.  In reaching this conclusion, the court reviewed the historical approach by a number of courts in assessing what rights a defendant enjoys during sentencing and holding that the Confrontation Clause forbids the admission of testimonial hearsay during the death-penalty phase of a case.  Again, although Mills differs in that it is a death-penalty case, its rationale still applies to the facts of the case before us, as both Mills and the instant case involve sentencing by a jury.  As the Court of Appeals of North Carolina reasoned, the focus in determining what constitutional protections apply should not be based on the available punishment.  State v. Hurt, 702 S.E.2d 82 (N.C. Ct. App. 2010).

October 13, 2011 at 07:08 PM | Permalink


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lol should have known this was not gonna fly ...of course the BIG BIG question is "How did the jury find out about the tape...let alone GET IT!"

Posted by: rodsmith | Oct 13, 2011 11:34:31 PM

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