University of Tennessee law professor Penny White examines how two recent Supreme Court rulings should impact a capital defendant’s right to confront witnesses during the sentencing phase of his death penalty trial. Prof. White argues that a defendant’s constitutional right to confront actual witnesses testifying against him during the guilt phase of his trial (rather than having such evidence admitted through hearsay or other non-first person evidence), should be extended to capital defendants during the penalty phase of their cases. The right of confrontation was strengthened by the Supreme Court’s 2004 ruling in Crawford v. Washington and its 2006 ruling in Davis v. Washington.
In her article — “He Said,” “She Said,” and Issues of Life and Death: The Right to Confrontation at Capital Sentencing Proceedings — White observes, “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.… Neither the Constitution’s text, its history, nor interpretive precedent provide a reasonable 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 proceeding.”
(P. White, “ ‘He Said,’ ‘She Said,’ and Issues of Life and Death: The Right to Confrontation at Capital Sentencing Proceedings,” 19 Regent University Law Review 387 (2007)). See Law Reviews and Arbitrariness.
