Felony sentencing courts have discretion to increase punishment based on un-cross-examined testimonial statements about several categories of uncharged, dismissed, or otherwise unproven criminal conduct. Denying defendants an opportunity to cross-examine these categories of sentencing evidence undermines a core principle of natural law as adopted in the Sixth Amendment: those accused of felony crimes have the right to confront adversarial witnesses. This Article contributes to the scholarship surrounding confrontation rights at felony sentencing by cautioning against continued adherence to the most historic Supreme Court case on this issue, Williams v. New York. This Article does so for reasons beyond the unacknowledged dark racial undercurrent that permeated the facts and circumstances of that case. Instead, this Article challenges the Williams Court's assumption that judicial authority existed in pre-Founding felony cases to consider un-cross-examined testimony for purposes of fixing the punishment. This Article also examines whether recent Court decisions requiring cross-examination of testimonial statements at trial should cause the Court to reconsider its current understanding of confrontation rights at sentencing. Furthermore, this Article addresses the growing importance of sentencing hearings given the prevalence of guilty pleas in the modern U.S. criminal justice system. This work advances the discussion on this issue by proposing a framework to distinguish between testimonial statements that should be cross-examined and those that should not. It concludes that, in some circumstances, confrontation is the right call at felony sentencing and advocates a balanced and practical application of this vital right.
47 U. Mich. J. L. Reform 791 (2014)