Crawford Meets Booker: the right to confrontation at sentencing

The degree of procedural protection our clients receive during sentencing hearings is in desperate need of a second look. In Booker, we went from the constitutional decision, which would have required full trial rights before guidelines enhancements could be applied, to the remedial decision, which emphasized the importance of the guidelines for uniform sentencing, but amended the underlying statutes to render the guidelines advisory. So where does Crawford fit in now, with its reinvigoration of the right to confrontation at trial as an engine for assuring reliable factual determinations? I think two types of pre-Blakely cases should give us some clues on where to start: use of unreliable hearsay during supervised release revocation hearings; and use of controverted accomplice hearsay during disputed sentencings.

First, in the context of supervised release revocations, the Ninth Circuit has recognized a Fifth Amendment due process right to confrontation. Going back to the Supreme Court cases on probation and parole revocation (Morrissey v. Brewer and Gagnon v. Scarpelli), the court in Comito recognized "the right to confront and cross-examine adverse witnesses at a revocation hearing, unless the government shows good cause for not producing the witnesses." In Comito, the district court revoked supervised release based on hearsay evidence of fraud. The Ninth Circuit court applied a balancing test, then reversed the revocation because the district court’s reliance on disputed hearsay evidence violated the releasee’s confrontation rights. "Unsworn verbal allegation are, in general, the least reliable type of hearsay, and the particular utterances at issue here bore no particular indicia of reliability."

The Ninth Circuit reached a similar result in Martin, 984 F.2d 308 (9th Cir. 1993). There, the Ninth Circuit found the right to confrontation was violated when the district court found possession of controlled substances based solely on hearsay evidence of two urinalysis examinations. Similarly, a reported district court decision, based on Martin, found a confrontation violation in the use of police reports at the revocation hearing (Myers, 896 F. Supp. 1029 (D.Or. 1995)).

Second, the Ninth Circuit has found the use of accomplice hearsay at sentencing to violate due process. For example, in Corral, the Ninth Circuit coalesced three earlier cases to find that sentencing based on unreliable hearsay in the form of accomplice statements violated due proces: "[R]elying on accomplice hearsay without adequate indicia of reliability violated the defendant’s constitutional right to due process." Similarly, in Meza de Jesus, the Ninth Circuit reversed an enhancement based on a cross-reference from the firearm guideline to the kidnapping guideline. The court found that the "inherent unreliability" of hearsay police reports did not even establish facts by a preponderance of the evidence. Corral and Meza de Jesus provide strong support for objecting to hearsay regarding disputed facts at sentencing.

Crawford provides a strong complementary argument regarding the need for confrontation at sentencing to assure the reliability of facts upon which sentence is based. The accuracy component is now tightly tied to the opportunity to confront and crossexamine the witness providing testimony to enhance sentence. And judges should want to sentence with the confidence that disputed facts are resolved based on verified information. Without analyzing the question under the due process clause, the district judge in Gray found that, although the Sixth Amendment did not apply at sentencing, the truth-finding function described in Crawford militated strongly in favor of resolution of disputed issues with live witnesses. And as Jeffrey Fisher, who won Crawford, says here, "[I]f the judge thinks that a fact at issue will require him, as a matter of statutory reasonableness on appellate review, to impose a higher sentence, then Crawford may well apply as a matter of right."

Especially given the statistics demonstrating that district courts are generally adhering to the guidelines at about the same rate as under the mandatory system, increased incarceration based on enhancements should have full due process protections, including the right to confrontation. While the constitutional norm alone should be sufficient to require the opportunity for confrontation, we should also argue that, consistent with the doctrine of constitutional avoidance, the language of U.S.S.G. § 6A1.3's requirement that "the information has sufficient indicia of reliability to support its probable accuracy" should be read to foreclose hearsay that brings confrontation rights into serious question.

Steve Sady, Chief Deputy Federal Public Defender, Portland, Oregon