Making the Right Call for Confrontation at Felony Sentencing

Felony sentencing courts have discretion to increase punishment based on un-cross-examined testimonial statements about several categories of unproven criminal conduct. Denying defendants an opportunity to cross-examine these categories of sentencing evidence undermines a core principle of natural law as adopted in the Sixth Amendment: those accused of felony crimes have the right to confront adversarial witnesses. This Article contributes to the scholarship surrounding confrontation rights at felony sentencing. I caution against continued adherence to the most historic Supreme Court case on this issue, Williams v. New York, for reasons beyond its dark racial undercurrent. Instead, I challenge the Williams Court’s assumption that judicial authority existed in pre-Founding felony cases to consider un-cross-examined testimony for purposes of fixing the punishment. I also examine whether recent Court decisions requiring cross-examination of testimonial statements at trial should cause rethinking of confrontation rights at sentencing. Furthermore, I discuss the growing importance of sentencing hearings given the increase in guilty pleas. This work advances the discussion on this issue by proposing a framework to distinguish between testimonial statements that should be cross-examined and those that should not. I conclude that in some circumstances, confrontation is the right call at felony sentencing and advocate a balanced and practical application of this vital right.