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September 21, 2012

Is it time for the Confrontation Clause to apply at sentencing?

The question in the title of this post is prompted by a new student note by Amanda Harris, which is titled "Surpassing Sentencing: The Controversial Next Step in Confrontation Clause Jurisprudence" and is available here via the Florida Law Review.  Here is the abstract:

After Crawford v. Washington opened the door to a Confrontation Clause debate in 2004, the United States Supreme Court has consistently confronted confrontation issues arising out of the Crawford interpretation.  One issue that the Supreme Court has not yet tackled is whether the Confrontation Clause applies during non-capital and capital sentencing. While many states and federal courts continue to hold that no right of confrontation during sentencing exists, many other courts have chosen to apply a right of confrontation in both capital and non-capital sentencing.

This Note takes two new approaches to the Confrontation Clause at sentencing debate. First, this Note addresses both the text of the Sixth Amendment and the history surrounding the Confrontation Clause to conclude that the right of confrontation should apply during sentencing, or at least during capital sentencing.  Second, this Note rejects the rationale that Williams v. New York is the controlling precedent in the confrontation at sentencing debate.  Under this approach, applying the Confrontation Clause at sentencing may be the next logical step in Confrontation Clause jurisprudence.

September 21, 2012 at 09:10 AM | Permalink


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Doug, thank you for posting Amanda Harris' article on confrontation at sentencing hearings. It is very timely as I am in the midst of drafting a postconviction motion dealing with the introduction of hearsay at a client's sentencing. Here are two comments, however.

One needs to be cautious about citing the NC case of Hurt, since the NC. Supreme Court has been sitting on a petition seeking discretionary review for almost two years.

My own view of Hurt is that the Court of Appeals made the right decision for the wrong reason. In my view the Sixth Amendment confrontation right applies only to proof of one fact which serves as an Apprendi fact to increase the defendant's exposure to punishment above the Blakely max, or the level allowed under the jury verdict or guilty plea alone. The reason is because such determination is, as Justice Scalia has stated many times, a trial for a greater offense. See Scalia's Blakely opinion where he talks about the crime the state actually seeks to punish, his concurrence in Ring v Arizona and Part III of his opinion in Sattazahan.

Once a jury convicts a defendant of the crime the state actually seeks to punish, then the confrontation right ceases to exist during the sentencing hearing.

In my case, since my client admitted three aggravating factors, I am arguing other constitutional protections to preclude hearsay comments about the commission of uncharged crimes.

This is a very fuzzy area.


Posted by: bruce cunningham | Sep 21, 2012 3:19:19 PM


"Once a jury convicts a defendant of the crime the state actually seeks to punish, then the confrontation right ceases to exist during the sentencing hearing."

who says bruce! what page of the constutition is that on?

Posted by: rodsmith | Sep 21, 2012 8:13:36 PM

LOL still no answer i see. Didn't think your could find it!

Posted by: rodsmith | Sep 23, 2012 2:44:44 PM

rodsmith, I've just returned from a weekend in charleston and have seen your question about the authority for the assertion that once one aggravator is found which increases potential punishment above the blakely max, the confrontation clause ceases to apply. The answer to your question is the Sixth Amendment, which says the confrontation right, as the jury trial right, applies only to criminal prosecutions. Once an ag is found, the proceeding no longer is a prosecution for crime, but a pure sentencing hearing. By definition, the Sixth Amendment does not apply to sentencing hearings. If it did then the jury would have a constitutional role to play, which Scalia specifically says in Ring, it does not as a result of Apprendi.

Posted by: bruce cunningham | Sep 23, 2012 6:27:18 PM

hmm interesting interpetation.

but i was under the impression the constitution required before a punishment could be applied you were required to convict someone beyond a reasonable doubt.

IF in a case like this the state via the judge wants to UP the ante as it were...time for a new trial.

Not sure who decided those little aggravator's as you call em doesnt' deserve a trial of thier own. Since by your own statement they INCREASE the punishment.

Posted by: rodsmith | Sep 24, 2012 12:04:24 AM

as for this!

"By definition, the Sixth Amendment does not apply to sentencing hearings."

would this be from the same buch of treasonous govt stooges who decided "expost" only applied in criminal and not civil cases in direct opposition to the actual wording of the constitution?

or the same buch of dumb fools who decided the Sex Offender Registry was perfectly legal applies ex post! becasue it is "CIVIL"

give me a break. I wouldn't trust that buch to tell me the sun was out at noon....i'd have to go look and make sure there hadn't been an eclipse i hadn't heard about.

Posted by: rodsmith | Sep 24, 2012 12:08:22 AM

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