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Westlaw Download Summary Report for LEWIS,FORREST W 4190470 Date/Time of Request: Client Identifier: Database: Citation Text: Lines: Documents: Images: Friday, November 09, 2007 09:53:00 Central SABLAN REGULR 19 REGULR 387 2180 1 0

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Regent University Law Review 2006-2007 Article *387 "HE SAID," "SHE SAID," AND ISSUES OF LIFE AND DEATH: THE RIGHT TO CONFRONTATION AT CAPITAL SENTENCING PROCEEDINGS Penny J. White [FNa1] Copyright © 2007 by Regent University Law Review; Penny J. White The elders said, "As we were walking in the garden alone, this woman came in with two maids, shut the garden doors, and dismissed the maids. Then a young man, who had been hidden, came to her and lay with her. We were in a corner of the garden, and when we saw this wickedness we ran to them. We saw them embracing, but we could not hold the man, for he was too strong for us, and he opened the doors and dashed out. So we seized this woman and asked her who the young man was, but she would not tell us. These things we testify." The assembly believed them, because they were elders of the people and judges; and they condemned her to death. .... And as she was being led away to be put to death, God aroused the holy spirit of a young lad named Daniel .... Taking his stand in the midst of them, he said, "Are you such fools, you sons of Israel? Have you condemned a daughter of Israel without examination and without learning the facts? Return to the place of judgment. For these men have borne false witness against her." Then all the people returned in haste. And the elders said to him, "Come, sit among us and inform us, for God has given you that right." And Daniel said to them, "Separate them far from each other, and I will examine them." When they were separated from each other, he summoned one of them and said to him, "... Now then, if you really saw her, tell me this: Under what tree did you see them being intimate with each other?" He answered, "Under a mastic tree." Then he put him aside, and commanded them to bring the other. And he said to him, "... Now then, tell me: Under what tree did you catch them being intimate with each other?" He answered, "Under an evergreen oak." And Daniel said to him, "Very well! You also have lied *388 against your own head, for the angel of God is waiting with his sword to saw you in two, that he may destroy you both." ... And they rose against the two elders, for out of their own mouths Daniel had convicted them of bearing false witness. [FN1] INTRODUCTION The Bible's story of how Daniel spared the virtuous Susanna, wrongly condemned to death, with the simple tools of sequestration, confrontation, and cross-examination, provides a fitting genesis for this article, which explores the right of confrontation at a capital sentencing hearing. Since the United States Supreme Court revisited the issue of the right to confrontation in Crawford v. Washington [FN2] in 2004 and in Davis v. Washington [FN3] in 2006, volumes [FN4] have been written about the right to confront witnesses during the guilt-innocence phase of a criminal trial. But little has been written about whether the cases, or related constitutional developments, require the right to confrontation at a capital sentencing hearing. That is the purpose of this article. Capital defendants are frequently sentenced to death based upon unchallenged hearsay--evidence of no greater quality, and arguably a significantly lesser quality, than that offered by the scheming, spurned elders

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who argued for Susanna's death. In many states, [FN5] statutes permit the introduction of "[a]ny evidence which has probative value and is relevant ... regardless of its admissibility under the ... rules of evidence" [FN6] at a capital sentencing hearing. [FN7] Many states construe *389 similarly broad capital sentencing statutes to allow the introduction of reliable hearsay. [FN8] In others, silent death penalty statutes invite judges to apply reasoning tethered to a half-century old U.S. Supreme Court decision that has limited, if any, viability today. [FN9] A death sentence under federal law [FN10] may likewise be based upon unchallenged evidence because the Federal Death Penalty Act provides that "[i]nformation is admissible regardless of its admissibility under the rules governing admission of evidence at criminal trials except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." [FN11] Thus, for example, death sentences have recently been sought or imposed based upon the following evidence: prison investigative reports that included anonymous claims by inmates that the defendants committed assaults and attempted to introduce cyanide into the U.S. penitentiary; [FN12] a jailhouse informant's testimony that alleged the *390 defendant's unadjudicated violent acts by repeating statements of another inmate who asserted his right to remain silent; [FN13] a report from a deceased psychiatrist, based on interviews conducted thirteen years earlier, which asserted that the defendant constituted a future danger to society; [FN14] third-party testimony, repeating statements by a deceased codefendant, that the defendant committed various criminal acts; [FN15] testimony by a police officer quoting witnesses who claimed to have been victimized by the defendant; [FN16] and testimony by a witness who appeared *391 as a surrogate for the victim's family and delivered a message from the family and its therapist. [FN17] *392 In these and many other cases, the decision to sentence a defendant to die is based upon evidence that is neither challenged nor confronted, and upon statements of witnesses who neither appear nor are cross-examined. This article discusses whether the Sixth Amendment's guarantee that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him" [FN18] is violated by the introduction of such evidence in capital sentencing proceedings. Because the right to confrontation flows from the text of the Constitution, the discussion begins with a short consideration of the relevant text of the Sixth Amendment in Part I. [FN19] Next, the article briefly reviews the historical background of sentencing in Part II [FN20] and capital sentencing in Part III. [FN21] Part IV of the article considers the current viability of Williams v. New York, [FN22] the Supreme Court precedent most often relied upon by courts holding that the right of confrontation does not apply at sentencing. [FN23] This section of the article suggests that several constitutional developments not only have eviscerated that precedent, but in the aggregate now mandate the right to confrontation in capital sentencing proceedings. One of those constitutional developments, the right to have a jury determine all facts of constitutional significance, is discussed in detail in Part V. [FN24] The final section of the article, Part VI, examines briefly the Supreme Court decisions in Crawford v. Washington [FN25] and Davis v. Washington [FN26] and discusses why the right to confrontation as delineated in those decisions is instrumental to a fair capital sentencing proceeding. [FN27] *393 I. CONFRONTATION AT CAPITAL SENTENCING BASED ON CONSTITUTIONAL TEXT A simple reading of the relevant constitutional text supports the argument that the right to confrontation applies at a capital sentencing hearing. The Sixth Amendment applies to "criminal prosecutions." [FN28] Thus, the Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." [FN29] The Sixth Amendment is not the only amendment in the Bill of Rights [FN30] that provides guarantees ap-

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plicable to the criminal process. While the Fourth, Fifth, and Eighth Amendments all clearly apply to aspects of the criminal process, only the Fifth and the Sixth Amendment utilize phrases which limit the scope of the protections they provide. The scope of the Sixth Amendment is limited by the use of the phrase "in all criminal prosecutions," while parts of the Fifth Amendment protections are limited by use of the phrase "in any criminal case." [FN31] This distinction has been characterized as a deliberate choice, which narrows the application of the Sixth Amendment in comparison to the Fifth Amendment. [FN32] Thus, unlike the rights enumerated in the Fifth Amendment, the Sixth Amendment rights [FN33] are applicable only to the accused "in criminal prosecutions." The use of the term "accused" in conjunction with the phrase "in all criminal prosecutions" infers that the Amendment protects *394 those who have been charged with a crime. For the most part, that construction is borne out by the nature of the rights included in the Amendment. For example, the Amendment guarantees a speedy and public trial, at a precise location, and with precise protections. While some of the enumerated rights by definition apply only during the proceeding at which the guilt and sentence are determined, commonly referred to as the "trial," the very nature of other rights, for example the right to "have compulsory process for obtaining witnesses," lends credence to the interpretation that the Sixth Amendment applies from the time of arrest until the time of judgment. [FN34] As early as 1892, the Supreme Court characterized the guarantees of the Sixth Amendment as being applicable to those accused and tried for the commission of a crime. [The phrase "in all criminal prosecutions" in the Sixth Amendment] distinctly means a criminal prosecution against a person who is accused and who is to be tried by a petit jury. A criminal prosecution under article 6 of the amendments is much narrower than a "criminal case," ... under article 5 of the amendments. [FN35] But the Court broadened its interpretation more recently, focusing specifically on some of the additional rights guaranteed by the Sixth Amendment. Thus, for example, the right to counsel has been interpreted to apply after the commencement of adversary criminal *395 proceedings, [FN36] to apply not only at trial, but also at all "critical stages" of the prosecution, [FN37] and to apply in certain proceedings that occur after trial. [FN38] This recognition that rights seemingly connected with a criminal trial may also apply before and after a trial returns the emphasis to where it belongs--on the actual phrase used in the Amendment, "in all criminal prosecutions." The very nature of a criminal prosecution requires the interpretation that Sixth Amendment rights do not begin and end with the in-court proceeding commonly known as a trial. Many of the tenets of our criminal justice system-- the presumption of innocence, the right to remain silent, the right to have fair notice of the accusations against the accused--would be meaningless were the Sixth Amendment read to apply only at trial. Historians of the Sixth Amendment have defined the phrase broadly, in such a manner as to include all steps, beginning with the criminal charge and concluding with the imposition of punishment. Francis Heller, writing about the Sixth Amendment in the late 1950s, concluded: "The 'criminal prosecution' begins with the arraignment of the accused and ends when sentence has been pronounced on the convicted or a verdict of '[n]ot guilty' has cleared the defendant of the charge." [FN39] This historical interpretation reinforces the accepted meaning and common usage of the term "prosecution." Webster's An American Dictionary of the English Language defined "prosecution" as the *396 "institution or commencement and continuance of a criminal suit; the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment." [FN40] Similarly, dictionaries in everyday use

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define "prosecution" as "the institution and carrying on of legal proceedings against a person" and "following up on something undertaken or begun, usually to its completion." [FN41] These definitions clarify that the term is properly recognized to include all aspects of the criminal proceeding, from charge to incarceration or acquittal; they do not support a conclusion that "prosecution" refers solely to the guilt phase of a criminal case. Thus, the relevant constitutional text of the Sixth Amendment suggests that the right to confrontation applies at capital sentencing proceedings. II. CONFRONTATION AT CAPITAL SENTENCING BASED ON HISTORY OF CRIMINAL SENTENCING The nature of the criminal proceeding at the time the Sixth Amendment was adopted similarly illuminates the issue of whether the right to confrontation applies at sentencing. The criminal process in the early days of America differed significantly from modern criminal proceedings. Modern criminal proceedings involve a finding of guilt or innocence by a jury and the subsequent determination of punishment, most frequently by a judge. This bifurcated process, in which different rules and procedures often govern the two stages, each requiring distinct roles for the jury and judge, has been altered significantly from the procedure followed in the seventeenth and eighteenth centuries and at the time of the writing and adoption of the Sixth Amendment. When the Sixth Amendment was adopted, the time of critical importance to the analysis in Crawford, [FN42] the sentencing decision was "collaps[ed] ... into the proceeding for determining guilt." [FN43] Even as late as the introduction *397 of the Sixth Amendment in 1789, a criminal trial was treated as a whole, with the jury deciding both the guilt and, as a result, the sentence of the defendant. [FN44] In 1789, a "criminal prosecution" began with the return of an indictment that contained sufficient facts to notify the defendant of the charge. [FN45] The jury in the case then heard the evidence and determined both the guilt and the punishment of the defendant. This finding of guilt and setting of punishment were accomplished in one proceeding, the "criminal prosecution," to which the Framers referred when they drafted the Sixth Amendment. [FN46] As the Supreme Court would note in reference to criminal proceedings in the late eighteenth century, "[t]he substantive criminal law tended to be sanction-specific; it prescribed a particular sentence for each offense." [FN47] It was not until the nineteenth century, with the invention of the penitentiary, [FN48] that statutes began to provide judges *398 discretion in sentencing, and prosecutions began to be divided into separate guilt and sentencing phases. [FN49] It was on this slate--with joined guilt and sentencing phases--that the Framers chose the words "in all criminal prosecutions" and provided that "the accused shall enjoy the right ... to be confronted with the witnesses against him." [FN50] III. CONFRONTATION AT CAPITAL SENTENCING BASED ON HISTORY OF CAPITAL SENTENCING Unlike the history of the criminal process in America, which supports the argument that confrontation rights apply at sentencing, the history of capital trials in America is less instructive on the topic. The American colonists brought with them the English fervor for capital punishment. In England, in the 1600s and 1700s, numerous crimes carried a mandatory sentence of death. [FN51] When the colonists came to America, they tracked this heritage by making many offenses punishable by a mandatory sentence of death. [FN52] Once a jury found a defendant guilty of the crime, the defendant was automatically sentenced to death. *399 This history of capital trials in America fails to instruct on the issue of the right of confrontation at a capital sentencing for a number of reasons, [FN53] the most prominent of which is the Supreme Court's rejection of mandatory death sentences. [FN54] Following the Court's determination in 1972 in Furman v. Georgia [FN55] that the death penalty as administered violated the Eighth Amendment's prohibition on cruel and unusual punishment, states undertook to revise their death penalty statutes to meet the Court's concerns. [FN56]

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In complete contrast to capital prosecutions at the time of the Sixth Amendment's framing, most states chose to bifurcate the capital proceedings, separating the guilt-innocence phase from the penalty phase. [FN57] Some states, however, chose instead to revise their criminal statutes to impose a mandatory death penalty for some crimes. [FN58] Those statutes requiring mandatory death sentences, mimicking the laws in place in the early colonies, were declared unconstitutional. [FN59] In ruling on the mandatory death penalty statutes of North Carolina and Louisiana, *400 the Supreme Court outlined three aspects of the statutes that it characterized as "shortcomings": [O]ne of the most significant developments in our society's treatment of capital punishment has been the rejection of the common-law practice of inexorably imposing a death sentence upon every person convicted of a specified offense. [This] mandatory death penalty statute for first-degree murder departs markedly from contemporary standards respecting the imposition of the punishment of death and thus cannot be applied consistently with the Eighth and Fourteenth Amendments' requirement that the State's power to punish "be exercised within the limits of civilized standards." A separate deficiency of [this] mandatory death sentence statute is its failure to provide a constitutionally tolerable response to Furman's rejection of unbridled jury discretion in the imposition of capital sentences. Central to the limited holding in Furman was the conviction that the vesting of standardless sentencing power in the jury violated the Eighth and Fourteenth Amendments. [These mandatory statutes] ... have simply papered over the problem of unguided and unchecked jury discretion. .... A third constitutional shortcoming of the ... statute is its failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death. [FN60] The Supreme Court's outright rejection of mandatory death sentences in Furman diminishes or perhaps eliminates any consideration of the procedures used in framing-era capital trials to analyze the right to confrontation at modern capital sentencing proceedings. But while the procedure in those framing-era cases has been rendered irrelevant to the analysis, the reasoning for the rejection of mandatory death sentences is not. Implicit in every aspect of the Court's rationale was the need for reliable information on which to base the life or death decision. First, the Court noted the function that societal standards play in the decision to implement and impose capital punishment. Society has determined that a death sentence should not be imposed on every person who commits a particular crime. [FN61] Thus, society's demand for reliable information upon which to differentiate between offenders obligates the courts to assure that those charged with the task of determining which offenders should live and which should die are provided sufficient, reliable information upon which to base that decision. *401 Few tasks are more demanding than determining whether another citizen should live or die. The responsibility placed upon jurors in capital cases [FN62] has been described as "truly awesome," [FN63] and the Court has disallowed procedures or instructions that diminish that responsibility. [FN64] In order to exercise that responsibility conscientiously, those asked to impose this ultimate sentence must be provided with reliable evidence. They should not be expected to decide whether a defendant should be sentenced to life or death based on evidence that has not been subjected to challenge or confrontation. Additionally, the Court reiterated a point that had been made earlier in Furman and which became the capstone of the Court's capital punishment jurisprudence. [M]embers of this Court acknowledge what cannot fairly be denied that death is a punishment different from all other sanctions in kind rather than degree .... Because of that qualitative difference, there is a corresponding difference in the need for reliability in the determination that death is the appropriate punish-

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ment in a specific case. [FN65] The recognition that "death is different" has led the Court to conclude that death sentences demand "unique safeguards," [FN66] specifically *402 a heightened standard of fairness in the proceeding and a heightened standard of reliability in the determination that death is the appropriate punishment: "because a deprivation of liberty is qualitatively different from a deprivation of property, heightened procedural safeguards are a hallmark of Anglo-American criminal jurisprudence. But that jurisprudence has also unequivocally established that a State's deprivation of a person's life is also qualitatively different from any lesser intrusion on liberty." [FN67] These heightened standards of fairness and reliability apply not only to the determination that the defendant committed an offense punishable by death, but also, perhaps even more, to the determination that the defendant deserves a sentence of death. [FN68] Thus, the Supreme Court has specifically recognized the importance of reliability at a capital sentencing proceeding: "[A]ccurate sentencing information is an indispensable prerequisite to a reasoned determination of whether a defendant shall live or die by a jury of people who may never before have made a sentencing decision." [FN69] IV. CONFRONTATION AT CAPITAL SENTENCING BASED ON SUPREME COURT PRECEDENT Courts almost uniformly hold that the right to confrontation does not apply at sentencing. The authority relied upon most frequently by state and federal courts to reject the application of the right to confrontation at capital sentencing proceedings is the Supreme Court's 1949 decision in Williams v. New York. [FN70] However, subsequent cases [FN71] and other constitutional developments have significantly undermined the Court's reasoning in Williams, leaving it, at best, diluted. *403 A. Williams v. New York Williams was decided more than a decade before the Supreme Court held that the Eighth Amendment's prohibition against cruel and unusual punishment was incorporated into the Due Process Clause of the Fourteenth Amendment. [FN72] Additionally, the Williams decision predated each of the series of cases significant to the resolution of the issue raised in this article. As discussed above, Williams was decided before the Court's nine separate opinions in Furman v. Georgia, [FN73] which prompted the wholesale revision of state capital punishment laws [FN74] and resulted in the adoption of standards of heightened due process, fairness, and reliability for both the guilt and sentencing determinations. [FN75] As a result, the decision predated the recognition by a majority of the Court that "death is different" and, thus, demands heightened accuracy. [FN76] Williams was decided in advance of cases delineating due process guarantees in various proceedings. [FN77] Similarly, it was decided more than five decades before the quintet of cases, beginning in 2000, which retooled the jury's role as factfinder in criminal cases. [FN78] And, finally, Williams was decided before the Court undertook to redefine the meaning of the Sixth Amendment Confrontation Clause in Crawford and Davis. [FN79] The New York procedure in place at the time of Samuel Tito Williams's trial for murder in the first degree required the jury to determine the guilt or innocence of the defendant and, upon finding guilt, to recommend the sentence. [FN80] Williams was found guilty of first-degree murder, a crime that was punishable by "death, unless the jury *404 recommends life imprisonment." [FN81] Williams's jury recommended that he receive a life sentence, but the trial judge imposed the death sentence, relying upon sentencing information provided to the court in accordance with New York law. [FN82] The sentencing information employed to overrule the jury recommendation included allegations detailed in a presentence investigation report. [FN83] Counsel argued that the judge's use of the untested sentencing information had violated Williams's right to due process of law. [FN84] The Supreme Court's opinion upholding the trial judge's actions repeatedly emphasized that Williams did

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not "challenge" the report, nor ask for an opportunity "to refute or discredit [it] ... by cross-examination or otherwise." [FN85] Despite the carefully framed constitutional argument raised, [FN86] the U.S. Supreme Court described the issue as *405 relating "to the rules of evidence applicable to the manner in which a judge may obtain information to guide him in the imposition of sentence upon an already convicted defendant." [FN87] Relying upon what the Court characterized as a historical basis, [FN88] as well as "sound practical reasons," [FN89] the Court affirmed Williams's death sentence. In the most often quoted language from the Williams decision, the Court emphasized the demanding task of trial judges: To deprive sentencing judges of this kind of information would undermine modern penological procedural policies that have been cautiously adopted throughout the nation after careful consideration and experimentation. We must recognize that most of the information now relied upon by judges to guide them in the intelligent imposition of sentence would be unavailable if the information were restricted to that given in open court by witnesses subject to cross-examination. [FN90] The majority's rationale in Williams is that the judge needs more, not less, information in order to impose an individually appropriate sentence. [FN91] Trial judges need the fullest amount of information possible about a defendant's background and personality in order to individualize the punishment. Despite the fact that the judge in Williams used the unconfronted and unconfirmed information to override the jury's *406 recommendation of a life sentence and impose a death sentence, the Court reasoned that modern changes in the treatment of offenders (so-called penological procedural policy) required sufficient information in order to assist in rehabilitation. The Court's decision in Williams has become synonymous with an absolute rule of law; it is cited definitively--and frequently [FN92]--as a well-established holding that the right to confrontation does not apply at sentencing. [FN93] But this standardization of and reliance on the Williams *407 holding fails to consider the Court's capital punishment, [FN94] due process, [FN95] constitutionally significant factfinding, [FN96] and confrontation [FN97] jurisprudence. B. Reconsidering Williams After the Court's Due Process Jurisprudence: Gardner v. Florida, Specht v. Patterson, and Morrissey v. Brewer 1. Gardner v. Florida Almost thirty years after Williams was decided, the Supreme Court revisited the issue of confrontation, albeit in due process clothing, at a capital sentencing in another judicial override case. [FN98] As with the statute at issue in New York, Florida's capital punishment statute in effect in 1973 provided for a jury recommendation of sentence, but allowed a judge to override a recommendation of a life sentence with a death sentence. [FN99] The Citrus County Circuit Court judge overrode a jury's recommendation of a life sentence in Gardner v. Florida, basing his decision to sentence Gardner to death upon evidence at trial and sentencing, and upon "factual information contained in [a] presentence investigation [report]." [FN100] Unlike in Williams, however, part of the report was not disclosed to Gardner or his counsel. [FN101] The focal point of the State's argument in Gardner was that the Court had resolved the issue in Williams and needed to neither revisit nor revise its decision. The Court, however, distinguished Williams on several grounds, [FN102] and ultimately concluded that Gardner "was denied *408 due process of law when the death sentence was imposed, at least in part, on the basis of information which he had no opportunity to deny or explain." [FN103] The State relied upon the underpinnings of Williams as a basis for upholding the death sentence in Gardner. [FN104] Adding to the argument that the trial judge needs "more, not less" information to do the best job possible in sentencing, the State contended that since much of the information relevant to sentencing is sensitive,

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the state needed to give "assurance[s] of confidentiality" in order to acquire the information. [FN105] The Court disagreed with the State's argument, noting that "the interest in reliability plainly outweighs" the State's claimed justification. [FN106] Similarly, drawing upon the rationale in Williams, the State argued that confidentiality was necessary to foster a defendant's rehabilitation. [FN107] The irony of the argument--that the potential for rehabilitation was in any way relevant to a sentence of death--did not escape the Court this time and the Court dismissed the argument outright: [W]hatever force that argument may have in noncapital cases, it has absolutely no merit in a case in which a judge has decided to sentence the defendant to death. Indeed, the extinction of all possibility of rehabilitation is one of the aspects of the death sentence that makes it different in kind from any other sentence a State may legitimately impose. [FN108] Among the distinctions the Supreme Court found between the case before it and Williams were counsel's failure in Williams to challenge or refute the information relied upon by the judge and the judge's narration of the information into the record in open court in the presence of the defendant and counsel. [FN109] Perhaps the most important difference relied upon by the Court to justify reaching a different result in Gardner, however, was the passage of time's effect on capital sentencing. Justice Stevens explained the significance of the intervening three decades by noting that Justice Black, the author of Williams, had himself recognized the need to reevaluate capital sentencing *409 procedures. [FN110] Since Williams, "two constitutional developments ... require[d] [the Court] to scrutinize a State's capital-sentencing procedures more closely than was necessary in 1949." [FN111] Those two constitutional developments were the recognition by a majority of the Court that "death is ... different," [FN112] and the recognition that sentencing is a "critical stage of the criminal proceeding." [FN113] Gardner, unlike Williams, came after the U.S. Supreme Court's decision in Furman v. Georgia. [FN114] Despite the differences in the reasoning of the five Justices in the Furman majority, the pervasive theme in the opinions [FN115] was a theme of fairness. As one example, in recognizing the importance of this development since Williams, Justice Stevens specifically noted in Gardner that death sentences must be determined based on "reason." [FN116] Throughout the Court's discussion of the State's proferred justifications, the Court emphasized the need for reliability in the capital sentencing proceeding. [FN117] Today, courts faced with the issue of the right of confrontation at sentencing often straddle the Williams/ Gardner tightrope, if acknowledging Gardner at all. The courts cite Williams for the overly-broad proposition that a judge, or jury, may consider inadmissible and unchallenged evidence in determining a sentence and confine Gardner to circumstances in which a sentence is based on secretive, nondisclosed information. [FN118] Therefore, as long as the court discloses all of the sentencing information upon which it relied to a defendant, the second-hand, unconfirmed, and unchallenged nature of the information was of no constitutional consequence. *410 This broadening of Williams and narrowing of Gardner ignores three essential distinctions in the two cases. First, Williams's counsel did not raise the issue at trial, thereby technically waiving the issue on appeal. [FN119] Second, since Williams the Court has demanded heightened reliability and accuracy in death penalty cases. The third distinction was the other "constitutional development" that the Court said required more scrutiny than had been necessary at the time of the Williams decision. That development was the Court's recognition that sentencing was a critical stage in the criminal justice process that required due process.

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2. Specht v. Patterson This second constitutional development--applying the fundamental aspects of due process, including the right to counsel, not only to trials but also to all "critical stages" in the criminal proceeding [FN120]--was far from mature at the time of Williams. [FN121] Just seven years before Williams, the Supreme Court had declined to find that the right to counsel was a "fundamental right, essential to a fair trial." [FN122] But both the right to counsel [FN123] and an understanding of the requirements of due process [FN124] *411 had matured by the time Gardner was decided. Ten years before Gardner, in Specht v. Patterson, [FN125] the Court merged the two concepts. Defendant Specht was convicted in a Colorado court for the crime of indecent liberties, which carried a maximum punishment of ten years. [FN126] Following his conviction, the court sentenced Specht to an indeterminate sentence of "from one day to life" based upon a procedure set out in the Colorado Sex Offenders Act. [FN127] The statutory procedure that Specht challenged allowed a defendant who was found guilty of a specified offense to receive a significantly increased sentence based upon the judge's finding of an additional fact. The additional fact was "not an ingredient of the offense charged," [FN128] but rather a new fact, found after conviction. As the Supreme Court would later explain, Specht "was examined as required and a psychiatric report prepared and given to the trial judge .... But there was no hearing in the normal sense, no right of confrontation and so on." [FN129] Specht argued that the additional factfinding of the judge in Colorado's sentencing procedure violated due process because it allowed a "critical finding to be made ... without a hearing at which the person so convicted may confront and cross-examine adverse witnesses ... and on the basis of hearsay evidence to which the person involved is not allowed access." [FN130] As in Gardner, the State relied upon Williams to support its contention that the sentencing procedure was satisfactory. [FN131] On certiorari, the U.S. Supreme Court distinguished the case before it from Williams, but unfortunately described the decision in Williams *412 broadly as holding that due process "did not require a judge to have hearings and to give a convicted person an opportunity to participate in those hearings when [the judge] came to determine the sentence to be imposed." [FN132] Despite this obvious overstatement of the Williams holding, to which the Court said it "adhere[d]," the Court described the State's argument in Specht as extending the Williams rationale to a "radically different situation." [FN133] The Court analogized the Colorado statute to habitual criminal and recidivist statutes, which implicate the procedural protections of the Due Process Clause. [FN134] The Court concluded that [d]ue process, in other words, requires that [the defendant] be present with counsel, have an opportunity to be heard, be confronted with witnesses against him, have the right to cross-examine, and to offer evidence of his own. And there must be findings adequate to make meaningful any appeal that is allowed. [FN135] Because the Colorado statute lacked all of these protections, it was "deficient in due process," [FN136] and violated the Fourteenth Amendment. The holding and rationale in Specht v. Patterson [FN137] clearly supported the Court's decision in Gardner, but the Court's reliance on Specht would also foreshadow another relevant constitutional development. Specht was the Court's first foray into what has come to be known as "constitutionally significant factfinding," but its significance in that area would not be realized for thirty years. [FN138] Importantly, when the holdings in Gardner and Specht are considered together, they lead inescapably to the conclusion that due process at sentencing includes not only the right *413 to counsel, but also the right to confront and cross-examine the government's

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witnesses. 3. Morrissey v. Brewer The Supreme Court has recognized the importance of confrontation, as an element of due process, in contexts other than sentencing. The holding of one such case, that applies the right to confrontation at a parole revocation hearing, bolsters the proposition that mature due process includes the right to confrontation at capital sentencing proceedings. In Morrissey v. Brewer, [FN139] two defendants [FN140] challenged the procedures by which their parole was revoked resulting in their return to prison. In both cases, the revocation was based upon a written report, filed by a parole officer, which recited various violations of the conditions of parole. In neither case did the defendant receive a hearing. [FN141] The appellate court approved the parole revocation procedures relying on the traditional view that parole was a privilege rather than a right and that prison authorities need broad discretion to further the objectives of penological policy. [FN142] The Supreme Court reversed, holding that due process requires, at a minimum, written notice of the alleged violations, disclosure to the defendant of the evidence against him or her, an opportunity to be heard and to present witnesses and evidence before a neutral and detached hearing body, "the right to confront and cross-examine adverse witnesses," and a written decision outlining the reasons for the decision. [FN143] The Court invoked a traditional due process analysis, characterizing the parolee's liberty interest as conditional and "indeterminate," but concluding that "[b]y whatever name, the liberty is valuable and must be seen as within the protection of the Fourteenth Amendment. Its *414 termination calls for some orderly process, however informal." [FN144] Notwithstanding the "overwhelming" [FN145] state interests at issue, the Court concluded that the State has no interest "in revoking parole without some informal procedural guarantees." [FN146] Thus, even after conviction and incarceration, when there is no question as to guilt or sentence, but only a question as to the manner of service of the sentence, and when the state's interests are strong, due process demands that an accused parolee have the right to confront and cross-examine witnesses before parole is revoked. That due process would require less when the issue is whether a defendant should be sentenced to life or death is inconceivable. The extent of procedural protections required by due process depends upon "the extent to which an individual will be 'condemned to suffer grievous loss."' [FN147] The loss that a parolee might suffer upon revocation is not remotely comparable to that which a capital defendant faces. At a capital sentencing proceeding, the defendant's interest in life and liberty are ultimate; no greater "core value" than life exists. [FN148] The government, too, has an interest in the sanctity of life and in assuring that it only seeks to execute those who are clearly deserving of the most severe penalty. Any government interest in efficiency is trivial by comparison to the interest both parties share in assuring reliability in the sentencing process. V. Reconsidering Williams After the Court's Constitutionally Significant Factfinding Jurisprudence: Apprendi v. New Jersey, Ring v. Arizona, Federal and State Sentencing Guidelines Cases Specht v. Patterson is a focal point for a crucial analytical element of confrontation rights at capital sentencing. After Specht, it is clear that only factual findings derived from a proceeding at which certain due process protections are honored may be relied upon to enhance a criminal sentence. Specht requires specifically that the

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accused have the right to counsel, the right to be heard, the right to offer evidence, and, most importantly, the right to confrontation and to cross-examination. [FN149] *415 The question which Specht did not address was who must make the "new factual finding" necessary to enhance the sentence. This question was resolved in Apprendi v. New Jersey, [FN150] in the first of five cases in which the Court delineated the right to have a jury determine constitutionally significant facts. [FN151] In Apprendi, a state criminal case, the trial judge enhanced a convicted defendant's sentence after finding that the defendant committed the crime "with a purpose to intimidate an individual or group of individuals ... because of race."' [FN152] The court based the enhancement upon a New Jersey statute which gave the court discretion, upon request by the state, to extend the prison sentence based upon a finding by a preponderance of the evidence that the crime had been committed with the "'purpose to intimidate"' because "'the crime was motivated by racial bias."' [FN153] Although the issue had not been analyzed in state criminal cases, a year earlier, the Court had faced a similar issue in two federal cases. In the earlier of the two, Almendarez-Torres v. United States, [FN154] the trial court enhanced the defendant's sentence for violation of a deportation statute based upon the defendant's admission that his prior deportation had been as a result of prior convictions. [FN155] The Court upheld the sentence, concluding that the statute under which the judge had sentenced the defendant was a "penalty provision." [FN156] Because that statute did not create a separate crime, the government was not required to include the fact of the prior convictions in the indictment as the defendant argued. [FN157] In the second case, Jones v. United States, [FN158] a judge enhanced a defendant's sentence for carjacking based upon provisions of a federal statute that allowed enhancement when the carjacking caused serious bodily injury or death. [FN159] Like the defendant in Almendarez-Torres, Jones argued that the fact of serious bodily injury or death was an element of *416 the offense, and had to be pleaded in the indictment and proven beyond a reasonable doubt to the jury. [FN160] The Supreme Court saw the two cases as distinguishable, based upon the nature of the facts necessary to allow enhancement. In Almendarez-Torres, the enhancement was based on prior convictions which had "been established through procedures satisfying [due process]." [FN161] In Jones, however, the facts used to enhance the sentence were "new" and in addition to the elements necessary to constitute the offense. The federal statute at issue allowed enhancement upon the finding of additional facts--either serious bodily injury or death--and those facts must be found by a jury based upon proof beyond a reasonable doubt. [FN162] The state case, on the Court's docket a year later, could not support a different result. Thus, the Court held in Apprendi that the Fourteenth Amendment provided the same due process protections in a state criminal case: "'[I]t is unconstitutional for a legislature to remove from the jury the assessment of facts that increase the prescribed range of penalties to which a criminal defendant is exposed. It is equally clear that such facts must be established by proof beyond a reasonable doubt."' [FN163] The decision in Apprendi is significant for several reasons. The trial judge in Apprendi, unlike the trial judge in Specht, conducted an "evidentiary hearing" before determining whether to enhance punishment. [FN164] This distinguished the case from the one before the Court in Specht. Additionally, the New Jersey statute at issue in Apprendi required the trial judge to find the facts by a preponderance of the evidence standard. This forced the Court to decide the narrow issue, which it described as "starkly presented," [FN165] of whether a "factual determination authorizing an increase in the maximum prison sentence ... *417 [must] be made by a jury on the basis of proof beyond a reasonable doubt." [FN166]

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Crucially, Apprendi also involved a noncapital crime. The Court had struggled previously to draw lines between elements of an offense, which must be determined beyond a reasonable doubt by a jury, and "sentencing factors," which could be utilized by a judge in determining a sentence. [FN167] Apprendi provided the Court with an opportunity to reconcile the conflicting cases outside the politically charged climate of a capital case. The Court's holding, reiterated from its two prior cases, [FN168] was that "any fact [other than a prior conviction [FN169]] that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." [FN170] The Court attempted to dilute any effect that its decision would have on capital sentencing proceedings, citing Justice Scalia's dissenting opinion in Almendarez-Torres, [FN171] a holding that it had already clearly distinguished: "[f]or reasons we have explained, the capital cases are not controlling." [FN172] The *418 attempted distinction was not readily accepted by those vigilant about fairness in capital punishment schemes. Within months of the ruling in Apprendi, the Court was squarely faced [FN173] with the issue of whether its Apprendi logic did not apply with full force to many capital punishment schemes. [FN174] As the dissenting Justices in Apprendi had predicted, the majority's holding could not be tailored to fit only noncapital cases. Thus, in Ring v. Arizona, the Court announced that "[c]apital defendants, no less than noncapital defendants, ... are entitled to a jury determination of any fact on which the legislature conditions an increase in their maximum punishment." [FN175] Thus, if a defendant found guilty of a capital crime could only be sentenced to life imprisonment absent some aggravating circumstance, the facts necessary to prove the aggravating circumstance, and thereby elevate the life sentence to death, must be found by a jury beyond a reasonable doubt. In Ring, the Court overruled prior authority to the "extent that it allows a sentencing judge, sitting without a jury, to *419 find an aggravating circumstance necessary for imposition of the death penalty." [FN176] But the Court's journey through the land of "factual findings requiring a unanimous jury determination," socalled "constitutionally significant facts," did not end with its overruling of prior capital cases in Ring. Instead, three other cases allowed the Court to refine its decisions. These cases, though not involving capital proceedings, bolster the proposition that the right of confrontation must apply at a capital sentencing. In 2004 and 2005, and most recently in 2007, the Court reviewed federal and state noncapital sentencing schemes in light of the Apprendi rationale. In Blakely v. Washington, [FN177] United States v. Booker, [FN178] and *420 Cunningham v. California, [FN179] the Court struck down sentencing schemes that permitted the judge to impose a higher sentence based upon a judicial finding of certain enumerated aggravating factors. [FN180] The Court reiterated that any fact that is not an element of the crime and that is necessary to increase a sentence beyond the statutory range is of constitutional significance and must be found beyond a reasonable doubt by a jury. [FN181] If the Sixth Amendment requires that a jury find, beyond a reasonable doubt, the factors necessary to impose a sentence outside the statutory range, then the majority of death penalty statutes in the United States require a jury determination of the sentence of death. [FN182] When a statute authorizes either a life or death sentence, but imposes a life sentence absent the finding of certain aggravating circumstances, the facts constituting the aggravating circumstance are facts of constitutional significance and must be found by a jury. When a jury is required to find facts beyond a reasonable doubt, the decision in Specht requires the presence of other important aspects of due process, including the right to counsel, the right to cross-examine, and the right to confrontation. [FN183] The extent to which those aspects of due process apply in a capital sentencing proceeding depends upon which facts in the proceeding are of constitutional significance. If a fact is of constitution-

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al significance, then the accused has a right to have that fact found beyond a reasonable doubt by a jury in a hearing at which the accused has the benefit of counsel and the opportunity to confront and challenge the evidence presented. *421 VI. Effect of Crawford and Davis on Application of Confrontation Rights to Capital Sentencings A. Background In Crawford v. Washington [FN184] and Davis v. Washington [FN185] the U.S. Supreme Court dramatically altered the parameters of the Sixth Amendment Confrontation Clause. In Crawford, the Court held that testimonial statements [FN186] may not be introduced against a defendant unless the witness is unavailable [FN187] and the defendant has had a prior opportunity to cross-examine. [FN188] After a discussion of the history leading to the Sixth Amendment, [FN189] the Court reached its conclusion by focusing *422 first on the word "witness" in the Sixth Amendment. Employing a dictionary definition of "witness" as one who "'bear[s] testimony,"' [FN190] and a second definition of "'testimony"' as "'[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact,"' the Court concluded that "[a]n accuser who makes a formal statement to government officers bears testimony in a sense that a person who makes a casual remark to an acquaintance does not." [FN191] Thus, the Court concluded that the Confrontation Clause "reflects an especially acute concern with a specific type of out-of-court statement," pegged "'testimonial' statements." [FN192] Although the Court admitted that it was not fully defining this term in Crawford, it referred to "[v]arious formulations" including "ex parte in-court testimony or its functional equivalent--that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially," ... "extrajudicial statements ... contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions," ... "statements that were made under circumstances that would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." [FN193] *423 To that laundry list the Court added "[s]tatements taken by police officers in the course of interrogations." [FN194] Just as the Court declined to fully define "testimonial statements," it likewise left to another day the definition of "interrogation." [FN195] The opportunity to refine this new language, at least with regard to testimonial statements and interrogation, came to the Court two years later in Davis v. Washington and its companion, Hammon v. Indiana. [FN196] Both cases involved police questioning of victims contacted as a result of calls to 911 emergency operators. Again, the Court was hesitant to provide broad guidance about what kinds of interrogations produced testimonial statements. [FN197] Confining its holding to the precise facts in the two cases before it, the Court held that [s]tatements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. [FN198] The Court acknowledged that the facts of the cases prompted its focus on statements made in response to interrogation, but added that the focus did not exclude other statements, made without interrogation, from Confronta-

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tion Clause analysis. [FN199] While ambiguity remains following Crawford and Davis about the kinds of statements at which the Confrontation Clause is aimed, the Court left no uncertainty about the process required when testimonial statements are at issue. The government may not introduce testimonial statements against the accused unless the witness is unavailable to testify and the accused has had a prior opportunity for cross-examination. In acknowledging this straightforward and absolute *424 requirement of the Constitution, the Court emphasized the procedural nature of the constitutional right: To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. [The Confrontation Clause] commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence ... but about how reliability can best be determined. [FN200] Crawford and Davis / Hammon involved statements offered against the accused during the guilt phase of a criminal trial. Thus, the Court had no real occasion to comment on the right to confrontation at sentencing. But the recognition of the absolute procedural demands of the right to confrontation, together with reliance on the nature of criminal proceedings at the time of the framing of the Sixth Amendment, exact the conclusion that the right to confrontation applies equally to testimonial statements offered at a capital sentencing proceeding. At a capital sentencing proceeding, the sentencer must determine whether an eligible defendant should live or die based upon factual information presented as evidence. This factual information is introduced either through the testimony of witnesses or exhibits. The defendant is entitled to challenge the factual information for the purpose of providing the sentencer, be it judge or jury, with a means of assessing the accuracy and reliability of the evidence it has heard. Determining the accuracy and reliability of sentencing information is no less important than determining the accuracy and reliability of information related to guilt. The best mechanism for assessing reliability is confrontation. B. Implications If one follows Justice Scalia's practice [FN201] of beginning with a dictionary definition, as this article has emulated, [FN202] the Sixth Amendment text guarantees the right to confrontation at a capital sentencing. The Sixth Amendment applies to "all criminal prosecutions." The same dictionary that Justice Scalia used to formulate his definition of "witness," provides that a prosecution is the "institution or commencement and continuance of a criminal suit; the process of exhibiting formal charges against an offender before a legal tribunal, *425 and pursuing them to final judgment." [FN203] Common dictionary definitions of "prosecution" include "the institution and carrying on of legal proceedings against a person" and "following up on something undertaken or begun, usually to its completion." [FN204] A criminal prosecution begins with a charge or arrest and ends, ordinarily, [FN205] with either an acquittal or punishment. The right to confront the witnesses is guaranteed at every stage in the prosecution by the very terms of the Amendment. Testimonial statements, therefore, may not be admitted at sentencing [FN206] without the right to confrontation unless the witness is unavailable and the defendant has had a prior opportunity to cross-examine the witness. An additionally compelling argument for the application of confrontation rights at sentencing flows from the Court's recognition in Crawford that the purpose of the Clause, ensuring reliability, is only constitutionally acquired in one way--by cross-examination. [FN207] The Court made clear that the Confrontation Clause requires not only that evidence be reliable, but that its reliability be tested in a particular way. [FN208] In essence, reliable evidence is insufficient to satisfy the Confrontation Clause; only evidence that has been subjected to cross-examination and confrontation suffices. This is because cross-examination is the criterion for reliability in

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a criminal prosecution. *426 "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because the defendant is obviously guilty. This is not what the Sixth Amendment prescribes." [FN209] Reliability is no less important at sentencing--particularly at a capital sentencing--than at trial. The Supreme Court's call for "heightened reliability" in capital proceedings underscores the need for "adversarial testing" to "'beat[] and bolt[] out the [t]ruth"' [FN210] even more so than in a noncapital case. The recognition by a majority of the Supreme Court that the qualitative difference in the penalty of death demands a "corresponding difference in the need for reliability" [FN211] only punctuates the point. The Court's nearly sixty-year old precedent, Williams v. New York, which upheld a judge's use of unconfronted evidence to override a jury recommendation of a life sentence, cannot be reconciled with the Eighth Amendment's heightened reliability requirements in modern death penalty jurisprudence, nor with the Sixth Amendment's demand that testimonial statements be tested by cross-examination. The Williams decision placed a premium on the quantity of information available to the sentencing authority, but the Eighth Amendment's demand for reliability and the Sixth Amendment's demand for confrontation establish that the focus must shift to the quality, not the quantity, of sentencing information. In each of the case scenarios outlined in the introduction to this article--and dozens more occurring daily in capital sentencing proceedings--the government sought to introduce testimonial statements at a capital sentencing hearing. Statements of witness-inmates made to prison officials investigating a prior prison disturbance, and then recorded by those officials into a prison investigative report, are equivalent to statements of a witnesscitizen given to a responding police officer after the occurrence of a crime. [FN212] The testimony of a *427 jailhouse informant repeating statements of a witness who has asserted the right to remain silent and who has not been cross-examined, does not differ from the testimony of an officer repeating statements of a witness who has invoked the marital privilege and refused to testify. [FN213] The investigative report of a psychiatrist containing statements by multiple individuals is indistinguishable from the ex parte examinations condemned in Crawford. [FN214] Similarly, the testimony by a witness, repeating statements by a now-deceased, never cross-examined witness, is the precise kind of extrajudicial statement prohibited by the Court in Crawford. [FN215] A police officer's testimony repeating a victim's statement, given after the event, equates to ex parte in-court testimony, specifically disallowed by both Crawford [FN216] and Davis. [FN217] And absent witnesses' statements repeated by a surrogate who testifies would fit under the most stringent definition of "testimonial." [FN218] None of these statements would be admissible had they been offered into evidence at the guilt phase of a criminal prosecution. The *428 Confrontation Clause would have barred their admission. Based upon the reasoning in Crawford and Davis, the Confrontation Clause should also bar the admission of unchallenged hearsay in capital sentencing proceedings. CONCLUSION In biblical times in the story of Susanna, Daniel poignantly demonstrated the crucial impact that confrontation had on determining the reliability of the elders' testimony. In modern times in dozens of cases, the sentencing of innocent people to death clearly demonstrates the effects of allowing unconfronted evidence to be considered in capital cases. [FN219] Neither the Constitution's text, its history, nor interpretive precedent provide a reasoned basis for denying a person facing death the right to confront the witnesses at a capital sentencing proceeding. On the contrary, the text, the history, and a half-century of constitutional development mandate that the Sixth Amendment right to confrontation be given full effect in the most significant of criminal prosecutions, the capital sentencing pro-

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ceeding. [FNa1]. Penny J. White is an Associate Professor of Law and the Interim Director for the Center for Advocacy and Dispute Resolution at the University of Tennessee College of Law. This article arose out of the Regent Law Review Symposium on "Crawford, Davis & the Right of Confrontation: Where Do We Go from Here?" I would like to thank the members of the Regent University Law Review, Professor James Duane, and the other participants--Professors Richard Friedman, Laird Kirkpatrick, Robert P. Mosteller, Christopher Mueller, Charles Nesson, Roger Park, and David Wagner--for the wonderful opportunity to be a part of the symposium. I would also like to thank Shauna Hashbarger, my research assistant, my colleagues at the University of Tennessee College of Law, especially Professors Aarons, Cook, and Davies (for their comments on my draft) and Professors Cornett, Kennedy, and Parker as wel