IX. The Right to Confrontation in Nontrial Proceedings

Federal and state cases have consistently rejected arguments that the right to confrontation should be recognized in a range of nontrial criminal proceedings.³⁰⁸ A criminal defendant has no right to confrontation during a preliminary hearing.³⁰⁹ A defendant also has no right to confrontation during a probation revocation proceeding,³¹⁰ transfer of custody hearing,³¹¹ or a sentencing hearing.³¹²

The courts have also refused to recognize a right to confrontation in quasi-judicial and administrative proceedings that may result in punitive consequences. For example, there is no right to confront government witnesses during a Transportation Security Administration hearing.³¹³ Detainees also may not confront government witnesses during immigration proceedings, regardless of the potential deportation or custodial consequences.³¹⁴ Similarly, courts have refused to recognize a right to confrontation of witnesses for the state right during involuntary commitment proceedings.³¹⁵

Although the clear trend is for courts to refuse to recognize the right to confrontation outside the trial courtroom, one federal trial court has held that a defendant has a right to confrontation during both phases of federal capital sentencing.³¹⁶ In this case, the judge concluded that recent Supreme Court death penalty doctrine "strongly suggest[s] that a defendant's Sixth Amendment expansive trial rights extend into the eligibility and selection phases" of the capital sentencing process.³¹⁷ In light of these recent cases, because "all of the alleged aggravating factors—statutory or nonstatutory—are of constitutional significance[,]. . . . the jury's factfinding [in all phases of capital sentencing] . . . should be accompanied by the same constitutional protections as those which accompany the trial of elements."³¹⁸ One state court has extended this reasoning to noncapital sentencing hearings if they are held before a jury.³¹⁹ The state judge found this reasoning "noteworthy" even though the federal case was a death penalty prosecution.³²⁰ According to this court, the same protections should inure in noncapital cases whenever defendants are sentenced by a jury. Constitutional protections apply and should not be limited by the available punishment; a sentencing body's need for evidence "does not sanction the admission of unconstitutional evidence against the defendant."³²¹

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Notes:

^[308] . In addition to the proceedings discussed...