Confrontation Clause Implications of Constitutional Sentencing Options
5 Pages Posted: 25 Jun 2006
This short essay explores the relationship between the Supreme Court's recent decisions regarding sentencing, on one hand, and the Confrontation Clause, on the other. Despite the vigorous litigation over and commentary regarding these issues, a possible relationship between them is uncertain and largely has been neglected thus far. Although the Supreme Court has not answered definitively whether a confrontation right ever applies at sentencing, several federal circuits have concluded that it does not. Courts have adhered to this result post-Booker and post-Crawford. One implication of the Supreme Court's recent cases, however, is that whenever a factual issue must be decided in order to impose a particular sentence, then a confrontation right should exist as to that issue. And the reverse implication follows as well: a confrontation right does not apply to issues that are not necessary to sentences.
Keywords: confrontation, hearsay, Crawford, sentencing, Booker
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