Confrontation Rights at Sentencing

SCOTUS had an interesting post last week about the Justice Department urging Supreme Court justices to allow lower courts continue to explore whether to apply the Sixth Amendment right of confrontation to sentencing hearings—including those involving the death penalty.

Being discussed was Fields v. U.S (07-6395) and a reply brief filed Thursday opposing Fields’ case’s acceptance.

Fields’ appeal does not ask for the right of confrontation to be applied to all criminal sentencing instances, SCOTUS says, only those involving death sentences, seeking to test the scope of two previous Supreme Court rulings – the 1949 decision in Williams v. New York (holding that the confrontation clause does not apply at sentencing), and Crawford v. Washington in 2004, barring the use as evidence of testimonial statements that had not been subject to cross-examination.

The Government, in its brief, did not “forcefully dispute that a conflict existed among courts around the country concerning the applicability of confrontation rights at capital sentencing,” but opposed review by the Court because that conflict is not “sufficiently well developed to warrant intervention.” Reasoning here “for leaving the issue percolate in lower courts was that the Supreme Court’s 2002 ruling in Ring v. Arizona was said to be reshaping the issue of applying Sixth Amendment rights to death sentencing… requiring jurors to apply a reasonable doubt standard when it decides on the existence of a fact that would be necessary to make a murder defendant eligible for the death penalty.

Fields’ petition for certiorari (Sept. 4) and the brief in opposition (Dec. 13) are here.