Broadly speaking, the purpose of this article is to bring attention to this radical and irreconcilable disparity between the unequivocal Sixth Amendment right of confrontation criminal defendants are afforded at trial,and the limited, qualified right of confrontation the FDPA grants federal capital defendants during death-eligibility determinations, which occur as part of the sentencing phase. It advances the argument that there is no tenable principled distinction on which this disparate procedural treatment may rest. We will attempt to demonstrate that, as written, the statutory provision that governs the admission of evidence at capital sentencings—18 U.S.C. § 3593(c)—is unconstitutional on its face as it applies to death eligibility determinations—and cannot be salvaged by judicial construction...In reaching our conclusion, this article will explore, inter alia, the extensions of our constitutionally grounded right of confrontation; that is, “[i]n all criminal prosecutions” the Confrontation Clause of the Sixth Amendment unequivocally grants the accused the right “to be confronted with the witnesses against him.”...In Part I, we will attempt to frame the problem we believe needs to be addressed: the manner in which the relaxed evidentiary standard 18 U.S.C. § 3593(c) prescribes deprives capital defendants of the full panoply of their Sixth Amendment confrontation rights during the litigation of facts that are the functional equivalent of elements of federal capital murder, inter alia, by allowing the trial judge to admit testimonial hearsay at his or her discretion. In Part II, we will explore the Supreme Court’s recent forays into what we shall call, for the purpose of this article, “functional equivalence jurisprudence,” to illustrate the constitutional significance of equating statutorily prescribed aggravating factors with elements of an offense, and its resonation with some federal district courts. In Part III, we will advance an alternative argument for applying the right of confrontation to the eligibility determination based on a careful reading of the text of the Sixth Amendment. In Part IV, we will sketch the history of the Sixth Amendment right of confrontation and explore the manner in which the Court’s holding in Crawford marked a sea change in its Sixth Amendment jurisprudence. In Part V, we will turn to Crawford’s effect on 18 U.S.C. § 3593(c).In Part VI, we will explore the recent phenomenon of judicially imposed trifurcation in an effort to address the FDPA’s constitutional shortcomings, and we will argue that that practice, whether by motion or sua sponte, is likewise unconstitutional. Finally, in Part VII, we will propose a pragmatic solution to this constitutional quandary: legislatively mandated trifurcation.
Pepson, Michael D. and Sharifi, John N.
"Two Wrongs Don't Make a Right: Federal Death Eligibility Determinations and Judicial Trifurcations,"
Akron Law Review: Vol. 43
, Article 1.
Available at: http://ideaexchange.uakron.edu/akronlawreview/vol43/iss1/1