The Fort Worth Court of Appeals has written an opinion addressing a defendant's objection to a PSI as a violation of his 6th Amendment right to confrontation. I agree with the outcome but don't find the opinion very convincing. Read it here.

Do you agree or disagree? Is there a better explanation for why there is no 6th Amendment violation?

Calling out Stride and Rolater!

JB:

I just went hmmmmmmmmmm when I read the opinion.

Time for you to write again on getting effective waivers as part of a plea.

For probation revocation see Mauro v. State, 235 S.W.3d 374, Eastland - holding revocation is not part of a criminal proceeding so Crawford does not apply.

The Perfect Plea form provides for an express waiver of the right to confrontation as applied to both guilt and punishment. That waiver would obviously prevent this sort of claim. But, given a defendant's election to have the judge decide punishment, does he retain a right to have the contents of a PSI excluded solely on the basis of a confrontation objection?

The Code of Criminal Procedure does provide a process by which a defendant can attack the contents. He gets to read it before sentencing. He gets to object to anything in it he thinks is unreliable. He could also subpoena anyone that he wants to challenge or confront. Why doesn't that provide all the process he is due?

The estoppel rationale used by the majority seems to me to be the right track. The problem they have is trying to rationalize a procedure intended for the purposes of, for lack of a better term, informal sentencing, against a right that is part of formal litigation--confrontation.

What might fit better is a tweak to the statute that codifies the nature of the holding. If you want informal sentencing, then you submit to a PSI and forego the formalities of confrontation and hearing.

If you choose formal sentencing, then be prepared for the State to put on its evidence and you have to prove up your claims that this was a one time thing because your mother didn't love you enough.

A good analogy is the certificate of analysis statute. You have the right to confront, but you have to invoke it early enough that the State can be on notice.

There are many competing values here. PSI's exist as en efficient way to allow a judge to make an informed sentencing decision. That's a good thing. Rules of Evidence and the Confrontation Clause exist to ensure a reliable and fair determination of facts. That's a good thing. If, however, a PSI has to be prepared under the Rules and the 6th Amendment, then you might as well have a formal punishment hearing. The defendant has the right to invoke that now. Right?

Well, the defendant certainly has the right to put on evidence at punishment, regardless whether a PSI is requested or not. Here, though, the issue is whether the defendant has surrendered his ability to confront any witnesses who provide information in the PSI.

The defendant, having read about the extraneous crime, changed his mind and wanted to confront those witnesses. Well, then subpoena them after reading the PSI and do so; or put the defendant on the stand and deny the crime.

But, the defendant doesn't really want to do those things. The defendant wants the judge to just toss out that information as unreliable.

Wonder what would have happened if the judge had said, "OK, we will continue this sentencing hearing to give the State time to call witnesses to prove up the extraneous." I'm betting the defendant would have said, "Hold on there, hoss. No need to get all constitutionally on me. We can just go with what we've got already."