A recent article in the Akron Law Review asks whether the Federal Death Penalty Act (FDPA) is in compliance with the Sixth Amendment’s right to confront witnesses because it allows hearsay evidence in determining whether a defendant is eligible for the death penalty. During a typical criminal trial, the accused has the right to challenge and cross examine the testimony of state witnesses who must appear in person. But in a death penalty case, the FDPA allows statements of witnesses not present in the courtroom to be used to determine whether the defendant’s case fits one of the aggravating factors necessary for a death sentence. The article’s authors, Michael Pepson and John Sharifi, write: “[A]llowing the government to prove statutory aggravating factors … with testimonial hearsay, even where the defendant has never had an opportunity to cross-examine the declarant(s), is not constitutional.” The authors suggest two constitutional alternatives: doing away entirely with the FDPA or revising the law to include the aggravating-factor determination in the guilt phase of the trial, subject to the usual rules of evidence. This would allow federal capital defendants to confront witnesses regarding the critical question of whether they are eligible for a death sentence.

(M. Pepson & J. Sharifi, “Two Wrongs Don’t Make a Right,” 43 Akron Law Review 1 (2010)). See Law Reviews.