Confrontation at Sentencing

Abstract

In modern criminal prosecutions, the determination of guilt is often little more than a formality. It sets the stage for the main event: sentencing. Sentencing, however, is driven by facts about both the offense and the offender. Years of imprisonment may hinge on those facts, making it imperative to determine them reliably. Yet courts routinely reject defendants' requests to employ the Constitution's prescribed methods of ensuring reliability: confrontation and cross-examination. That practice rests on a simple premise: the Sixth Amendment's Confrontation Clause does not apply to sentencing.

Taking a textual, historical, and structural approach, this Article challenges that premise. The conventional wisdom lacks a footing in the language of the Sixth Amendment, is not supported by historical practice, and departs from the adversarial truth-finding process at the foundation of American criminal procedure. Moreover, it seems to have arisen almost entirely by accident. Properly understood, the Confrontation Clause's protections are not limited to the unusual case where guilt is contested; they exert their influence even on the determination of the proper punishment.

Keywords: originalism, Confrontation Clause, Sixth Amendment, criminal procedure, sentencing, cross-examination