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November 16, 2010

Blakely meets Crawford in interesting NC appeals court ruling

A couple of helpful readers alerted me to an interesting opinion issued today by a North Carolina intermediate appellate court in North Carolina v. Hurt, No. COA09-442 (N.C. App. Nov. 16, 2010) (available here). This paragraph from early in the opinion highlights why Hurt is a must-read for all hard-core Sixth Amendment fans:

Whether a defendant has a right to confront witnesses against him at sentencing trials conducted pursuant to Blakely is an issue of first impression in our courts.  Defendant contends that United States Supreme Court decisions Crawford v. Washington, 541 U.S. 36, 158 L. Ed. 2d 177 (2004), and, by extension, Melendez-Diaz v. Massachusetts, 557 U.S. __, 174 L. Ed. 2d 314 (2009), should apply at all sentencing proceedings, whether capital or non-capital, that are held before a jury.  For the reasons discussed herein, we agree that the Confrontation Clause of the Sixth Amendment applies to all sentencing proceedings where a jury makes the determination of a fact or facts that, if found, increase the defendant’s sentence beyond the statutory maximum.  Thus, because the trial court’s admission of testimonial hearsay evidence during the aggravation phase of Defendant’s sentencing proceedings violated the Confrontation Clauses of the federal and state constitutions and the constitutional errors were not harmless beyond a reasonable doubt, we remand this case for a new sentencing hearing.

November 16, 2010 at 04:30 PM | Permalink


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Certainly if testimony is going to be used to increase the defendant's sentence then the defendant should have a chance to confront. I wouldn't limit this to jury sentencing but to any testimony used for this purpose. The burden is still much lower during the sentencing phase, of course. Burden of proof and confrontation are pretty much entirely orthogonal.

Posted by: Soronel Haetir | Nov 16, 2010 8:01:16 PM

i have to agree. Anytime a judge receives information about a defendant that is basically "testimony" about that person and our constution REQURIES the defendant have an opportunity to confront that accusor.

Posted by: rodsmith | Nov 16, 2010 11:07:22 PM

In my view, Hurt reached the right result for the wrong reason. The Court of Appeals talks about a "sentencing trial." I don't believe that the Apprendi line or the Sixth Amendment authorizes or requires such a proceeding.

By its terms the Sixth Amendment applies only to "criminal prosecutions." It has never been held, and Apprendi does not hold, that juries have a constitutional role to play in sentencing, although the states can give them a statutory role. Hurt, in my opinion, is irreconciliable with Justice Scalia's "circuitbreaker" statement for the majority in Blakely and his rebuttal to Justice Breyer's view in Ring that the Eighth Amendment requires juries to decide between life and death. As Scalia said in Ring, "Today's judgment has nothing to do with jury sentencing. Those states that leave the ultimate decision of life and death to the judge may continue to do so."

As Justice Thomas said in Apprendi, the case is about "what is a crime". It is not about giving the jury a constitutional role in sentencing.

So the confrontation clause applies to the determination of a SINGLE aggravator because the proceeding is a criminal trial to see if the def is guilty of "the crime the state actually seeks to punish." Scalia in Blakely.

But the confrontation clause does not apply to the determination of any aggravator beyond the one necessary to convict the def of a greater offense and increase the def's exposure to punishment above the blakely maximum.

bruce cunningham

Posted by: bruce cunningham | Nov 17, 2010 8:15:00 AM

sorry bruce but the constution gives the accused the RIGHT to face their accuser. in my book anyone giving information that can be used to INCREASE a person's criminal punishment is an ACCUSOR! therfore the defendnat has the RIGHT to face them and make them PROVE that information is accurate

Posted by: rodsmith | Nov 17, 2010 2:50:01 PM

Rodsmith, I think we are both saying the same thing and if a fact increases the potential punishment that the defendant faces, then that fact is not a sentencing fact, it is an element of a new and greater offense. therefore, the Sixth amendment right to confrontation applies to the testimony.

What I said was that the court in Hurt was right for the wrong reasons. In my opnion, there is no such thing as a "sentencing trial." What the prosecutor was trying to do in Hurt was convict the defendant of a crime greater than second degree murder, basically aggravated second degree murder, and since what was happening was a criminal trial then the confrontation right applies.

Basically, we agree. At least I think we do. Are you saying that apprendi bestowed on juries a constitutional role to play in the sentencing process, as opposed to the conviction process? If so, how do you square that notion with Scalia's position in Ring v Arizona?


Posted by: bruce cunningham | Nov 17, 2010 5:57:08 PM

So, in reading all of this, can one assume that if a defendant is falsely accused of felonious charges that could give him over 100 years in prison, does he not have the right to "face his accuser", via his own side being allowed a forensic expert on his behalf?

i.e. Guilford County brings to court a state expert who testifies that it is very possible that a young lady can be raped over 100 times and have her virginity intact, while the public defender's office does not give afore-mentioned a defense with another expert to give factual data as to the likelihood or percentage of how that is possible, or other testimony to assist the defendant in his right to confront his accusers? And, public defender's explanation when defendant beseeches for the expert testimony of forensic expert on his behalf, simply states, "State has the burden of proof, not us?", with a sentencing of over 100 years as a possible result of the lack of fulfillment of the 6th amendment?

How does one, then, seek justice and reparation when this has occurred, leaving a man with the rest of life in prison who was never truly allowed a constitutionally sound trial (other fallacies excluded to stay on this topic)?

You can see who I am by clicking on my url, DAB. Blessings...

Posted by: Rochelle | Jan 20, 2014 2:59:54 PM

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