Sunday, October 16, 2011

Arkansas holds confrontation right applies to jury fact-finding in sentencing

In Vankirk v. State, 2011 Ark. 428, 2011 WL 4840620 (Oct. 13, 2011), the Arkansas Supreme Court has held that the confrontation right applies to sentencing proceedings conducted before a jury, in non-capital as well as capital cases. The logic of the opinion actually appears to apply to all sentencing proceedings, but in an apparent attempt to avoid conflict with other cases the decision is limited to proceedings before a jury, though the court does little to defend the distinction, and I believe it is a hard one to maintain.

Vankirk pleaded guilty to three counts of rape, of his niece, a child, and under Arkansas law elected to be sentenced by a jury. At the sentencing proceeding, the prosecution presented a videotaped interview that the girl made with a state police investigator. The state supreme court held that the girl's statements in the interview were testimonial. Putting aside for present purposes the matter of the child's age, that is clearly the right result. And then the court held that the confrontation right applied to the sentencing proceeding.

I think this case is a good illustration of the issue of confrontation rights in sentencing. Suppose the girl had testified live at the sentencing proceeding, but at the conclusion of direct, as defense counsel was rising to cross-examine, the judge said, "You are excused. We have no need for cross-examination, so I will not allow it." I think that would plainly be unconstitutional – if not under the Confrontation Clause, because the Clause is construed not to apply to this type of proceeding, then under the Due Process Clause. So should the result be any different when the witness testifies just outside the courtroom on videotape and the tape is played at the proceeding? I don't believe so. That in effect is what happened here. (I'm not sure it was actually in physical proximity to the courtroom, but it does seem that the tape was made at least in part to supply evidence for courtroom use; the state supreme court said the statements "were made to an investigator for the state police for the purpose of proving events relevant to a criminal investigation.") When I refer to the speaker as a witness and say that she is testifying, I am drawing on one of the essential points of Crawford: Simply because a person (such as Sylvia Crawford) speaks out of court does not mean that she is not testifying, and indeed the central focus of the Confrontation Clause is to require that testimony be given in court, under prescribed procedures, rather than in any other way, such as the cihttp://www.blogger.com/img/blank.gifhttp://www.blogger.com/img/blank.gifvil-law closed-door style.

So perhaps the U.S. Supreme Court should go the full route of holding that the Confrontation Clause applies with full force to all sentencing proceedings. It may be reluctant to do so, however. One possibility would be to hold that the Confrontation Clause itself does not apply to most sentencing proceedings (i.e., that it does not apply beyond the scope of Apprendi), but that, notwithstanding Williams v. New York, 337 U.S. 241 (1949), it does provide some right of confrontation, perhaps more easily overcome than the Sixht Amendment right.

11 comments:

Anonymous said...

I think this is a poor decision. I do not think that a sentencing hearing is a "criminal prosecution." I've always viewed that term to be limited to a judicial determination of the guilt or innocence of a party. Once a person's guilt has been legally established the criminal prosecution in that case ends. Both a trial and a sentencing hearing can be rather loosely thought of as "criminal prosecutions" but it's just that: loose thinking that blindly ignores that fact that at trial a person's criminality is only asserted while at sentencing it is a given.

I don't see anything in either the text of the constitution itself nor in the history of the confrontation clause that supports the notion that it applies outside a trial milieu. I agree that a statement doesn't have to be given in court to be testimonial but a testimonial statement must be one that is directed at establishing the guilt or innocence of a person. Once a person has either pleaded or been found guilty the confrontation clause of the constitution is a nullity.

Anonymous said...

I'm not sure I agree with the previous post. In Illinois, it is not uncommon at sentencing hearings for the prosecution to call witnesses to testify about the defendants behavior unrelated to the crime for which he was convicted. For example, I've handled a number of cases where prison guards have testified to the defendant's conduct in jail while awaiting trial. Although the defendant is not being criminally charged for that conduct, the witnesses are making allegations against the defendant that will affect his or her liberty rights. Isn't that what the spirit of the CC is all about?

Richard D. Friedman said...

I think it's overbroad to say that the Confrontation Clause doesn't apply at all to any part of sentencing; given Apprendi I think it applies at least to the eligibility phase of capital sentencing. But putting that aside, I don't now know enough about the history of sentencing procedures to know whether it makes sense to treat them as part of the "prosecution" for Confrontation clause purposes. (I do know that at the time of the framing most felonies were punishable by death, and so there wasn't much of a proceeding; I'm not sure about the situation with respect to misdemeanors, and I'm not sure which way this cuts.)

Having said all this, though, I don't think the anonymous commentator answers one important point: Would it not violate due process if at a sentencing procedure like the one in this case the victim testified in court and the court then refused to allow cross-examination? And if the answer to that is affirmative, what effective difference is there if, say, just before the proceeding and around the corner, the victim makes a videotaped statement to be used at hte proceeding?

Anonymous said...

I think it's an incredible decision. Would the first poster like to not have the right to counsel, right to be present, the right to a speedy sentence, etc. These are all 6th amendment protections. How can you afford some and justify not affording the others. Additionally, the right to be present comes from the right to confrontation. So do we do away with that? It is impractical and possibly detrimental to the development of accurate sentencing to allow the prosecution to put on any evidence it seeks to about the defendant and his life without an opportunity to cross-examine or at least make the person testify under oath. The sad part is arkansas is the only state to go this far.

Anonymous said...

Prof. Friedman, are you suggesting that there exists a free-standing due process right to a "fair" sentencing procedure? And that any sentencing procedure that denies confrontation is unfair?

If there is no 6th confrontation clause right to cross-examine at a sentencing hearing. And if the confrontation clause is applicable to the states solely because of 14th DP. Unless you can find a free-standing "substantive" DP right to confront at a sentencing hearing, none exists, correct?

Anonymous said...

"Would it not violate due process if at a sentencing procedure like the one in this case the victim testified in court and the court then refused to allow cross-examination?"

It would not violate due process. I think the due process argument is trying to sneak a right in via the back door when you can't get it in the front door.

Once a person is convicted of a crime they lose a certain degree of Constitutional protection. That's axiomatic. So the only question is should the right to confront be one of those Constitutional protections that a convicted criminal loses. I think so. Outside of the death is different context I don't know of any authority that supports the contention that the right to confront a witness at sentencing is a right convicts have historically enjoyed. Nor do I think it's one they should enjoy, for that matter.

Richard D. Friedman said...

So as I understand this anonymous contributor's last comment, it would lead to this result: Suppose that at sentencing the court holds an evidentiary proceeding at which a witness testifies to various horrible things the defendant has supposedly done over the years. The defendant, denying all this, requests a chance to ask the witness some questions. The court refuses, saying "You've been found guilty. You have no right to ask questions." And the Constitution has nothing to say about that.

This seems clearly wrong to me.

Andrew MacKie-Mason said...

I think the second anonymous commenter makes a good point. Maybe there should be a confrontation right as regards testimony that makes accusations not proven at trial, but not necessarily for other kinds of testimony, such as victim impact statements?

Richard D. Friedman said...

In belated response to the anonymous comment on fairness: The Supreme court has indicated many times that concepts of fundamental fairness are inherent in due process. It seems to me fundamentally unfair to allow a witness to testify at a sentencing hearing in response to prosecution questions and not allow the accused to question her. This is not a matter of "substantive due process" -- it is about as procedural as one could get.

Anonymous said...

Professor. You keep asserting it's fundamentally unfair to not allow the defense to confront at sentencing but you don't explain why you think that way.

There are plenty of places in the law where there is a line drawn, error preservation springs immediately to mind. Either one preserves the error at the proper time and place or one forfeits it. I'm not arguing the that the defense never gets to confront. But when the defense waives that right at trial why on earth should it get another bite at the apple later. How is unfair to say "if you want to confront do it at trial or your out of luck." You may not agree with that position, but I fail to see what is fundamentally unfair about.

Richard D. Friedman said...

What seems unfair to me -- at sentencing as well as at the guilt-determination phase -- is that the prosecution can put a witness on the stand and ask her questions, or even just have her tell her story, but when the defense says, "Now I'd like to ask her some questions," the judge can say, "No, I'm not going to let you do that." At the moment I can't think of any Anglo-American fact-determining procedure in which that happens. And if I'm right that this would be fundamentally unfair, I don't think there's a significant difference if the witness gives her testimony outside the courtroom, with the cooperation of the prosecution. Assuming the Confrontation Clause itself doesn't apply to the proceeding, one might say this fairness consideration is less pressing if the witness is not available at the time of the proceeding or if the testimony was given without the participation of the prosecution or some other governmental agent.