Unbranding Confrontation as Only a Trial Right

Abstract

In this work, I challenge the oft-cited, but unsupported rule that the Sixth Amendment Confrontation Clause only applies at the trial stage of the “criminal prosecution.” I examine the most likely interpretation of the term “criminal prosecution” at the time of the Founding and conclude the term would have included felony sentencing. I explore the Counsel Clause’s early rejection of the “trial-right-only” rule. I also discuss the erosion of the “trial-right-only” rule with regards to the Jury Trial Clause as recently demonstrated in the 2013 term in Alleyne v. United States. I advocate eliminating the trial-right-only theory of the Confrontation Clause to allow cross-examination of testimonial statements that are material to punishment and where cross-examination assists in assessing truth and veracity. In such cases, I advocate a practical application of the fundamental right to confront witnesses during felony sentencing. This work advances the discussion on this issue by proposing uniform application of the Sixth Amendment’s structurally identical Counsel, Jury Trial, and Confrontation Clauses at felony sentencing.