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.