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August 31, 2016

"The Value of Confrontation as a Felony Sentencing Right"

The title of this post is the title of this new paper authored by Shaakirrah Sanders now available via SSRN. I have had a grand time earlier this week digging into the historic decision in Williams v. New York, so this article strikes me as especially timely. And here is its 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.

August 31, 2016 at 03:19 PM | Permalink


When I was serving time in a Federal penitentiary (USP -1, Coleman, Florida) 9-10 years ago, I saw several inmates who had life sentences for drugs, where the drug quantity had been determined at sentencing using the (perjured?) uncross-examined hearsay testimony of snitches, who got substantial reductions in their sentences for providing substantial assistance to the Government. Several swore to me (and I believe them) that they had nothing to do with any drugs those snitches had testified about to get their own time reductions. Relevant conduct determinations at sentencing should be based only upon live testimony from real witnesses (not affidavits or trial testimony from other cases), who are subjected to the crucible of a thorough and sifting cross-examination. The attorney for one inmate I was incarcerated with had caught the AUSAs putting on testimony from an informant who could not have engaged in the drug deals with the defendant that he testified about, as that snitch was himself incarcerated in a California state prison at the time of the alleged drug transactions in New Jersey and New York!

Posted by: Jim Gormley | Aug 31, 2016 3:33:34 PM

Doug, very timely post. Thanks. I am working on two "confrontation at sentencing" postconviction cases.

The first involves a def who had a dozen cases on the trial calendar and four of them were being tried. During the attorneys' closing argument, the judge, unbeknownst to the Def, was going through the files of the cases that were not being tried. As the judge was imposing the sentence, he made references, some of them inaccurate, about some allegations contained in the files he had been looking through. I have been arguing in the case the defendant was denied a fundamentally fair sentencing hearing when the judge was gathering prejudicial information that the def didn't have a chance to rebut.

Second case, a jury in a first degree murder case was deliberating whether to convict the def of first degree murder, second degree, or find him not guilty. The sentence for first degree murder is automatic life without parole. The minimum sentence for second degree is eight years.

Thejury was hung eleven to one, with the lone holdout, a mother whose son had been in the courtroom throughout the trial watching, voting for second degree. Then, the jury foreman told the woman, "If the defendant is convicted of second degree, he will be out in eight years, and come after your son and kill him." Strange how the foreman knew to say the sentence would be eight years, since that information had not been given to them.

You guessed it, the woman changed her vote to guilty of first degree. Several days after the trial, the woman's conscience got the best of her so she told the defense lawyer what happened.

I am arguing on postconviction a denial of confrontation rights and fundamental fairness.


Posted by: bruce cunningham | Aug 31, 2016 11:42:20 PM

Hello I am a Mother of a son currently sentenced to 5 yrs in prison in Georgia, on 3.5 grams of Cocaine in 2012. It was in his girlfriends purse (not saying he innocent) and the 3 that were in th car were ages 18 to 19 yrs old. My son said it was his to save his girlfriend from Jail but they arrested both charged and before a phone call they were before detective signing paper of guilt to felony and Drug COURT PROMISED no felony record once they finish 2 yrs Drug Court. Both had to quit their good paying jobs to work Mc Donalds and drug test meetings you know story, 2 mths before graduation ,my son had reached his sanction limit and was sent 8 Months RSAT and spent 7 months in County waiting for bed RSAT, he got sanction because he had broke up with girlfriend and the courts councilling Dept put my son on anti depressants which he over slept drug test, he woke and went to emergancy room obtained one passed but Judge rejected it , he was in bad mood that day. so my son spent at this point total 2 half yrs county jail and R SAT on sanctions, he was thrown out of program so all work he did was waste time. He was put on 5 yrs probation nd now Felony drugs on record. in the first year his son was born with girlfriend. During his wait in County Jail for RSAT my son in jail got addicted to meth , this is drug court time. My son violated probation by not reporting whill I was in hospital nd his addiction now on meth has him dirty. He turned himself in and was given 5 yrs in prison. My son 19 yr old skateboarder at time of arrest is now tattooed from head to toe, face he has joined a gang for survival in Max security 2cod worse Prison in USA he is on meth and heroin weighing 40 lbs less , talks the lingo ,looks the part of a prisoner ,his child does not know his dad,the babies mom was involved in horrific accident not at fault .Tramatic Brain Injury is her outcome and she is in and out of psychiatric hospitals , her parents in another state has taken my grandson now age 3, he lost mom and dad. My son has been made into a criminal mind set. He gave up. He has been treated like an animal for years, been on the mercy of courts. Strict monitoring and very consuming schedule of classes groups and is going to spend as much time as some murders. Something must change, my son was not perfect but he surely was not what he is now. Prison doee not rehabilitate , they tear down the soul , demean the spirit , treat like animal. He should had plead guilty from start and prob never spent a day in jail.

Posted by: KAROLE | Sep 5, 2016 1:30:38 AM

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