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The 5th U.S. Circuit Court of Appeals’ recent decision that the Constitution’s confrontation clause does not bar use of hearsay evidence presented in the penalty phase of a capital case extends a circuit split and raises the potential of a U.S. Supreme Court showdown. The 2-1 panel decision breaks with the 11th Circuit but joins the 7th Circuit in a decision that has also seen judges in state and federal courts around the country draw differing conclusions. “Courts around the country are all over the board on this,” said Robert C. Owen, clinical law professor at University of Texas School of Law in Austin, and defense attorney for defendant Sherman L. Fields. Owen said he would seek reconsideration by the full 5th Circuit. Also, the panel rejected a challenge to the use of psychiatric expert testimony to predict the potential future dangerousness of the defendant based on some of the same hearsay material, a practice called “junk science” by David Bruck, clinical law professor at Washington and Lee University School of Law in Lexington, Va. “This testimony in the era of Daubert is really a museum piece,” Bruck said. In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the high court set criteria for determining the use and reliability of expert evidence. “Both issues go to the heart of reliability of evidence and should be of interest to the Supreme Court,” he said. Fields was convicted of bribing a guard to escape prison, then obtaining a gun and shooting his ex-girlfriend after convincing her to leave her newborn at a Waco, Texas, hospital and accompany him. U.S. v. Fields, 2007 WL 926864. Hearsay evidence introduced during the penalty phase included statements about his juvenile record and reports of statements by prison guards. None of the challenged statements affected Fields’ eligibility for the death penalty, only jurors’ choice of death or life in prison. In a strenuous dissent, Judge Fortunato Benavides wrote, “It is without doubt that the death penalty would not have been imposed but for the establishment of aggravating factors at the selection phase.” He noted jurors found seven mitigating factors and twice deadlocked on death or life in prison. By contrast, Judge Jerry E. Smith, joined by Judge Carolyn Dineen King, relied heavily on a 56-year-old case, Williams v. New York, 337 U.S. 241 (1949), characterizing the review as a question of due process, rather than Sixth Amendment confrontation protection. Other courts applying confrontation clause protection have relied on the 2004 high Court decision, Crawford v. Washington, 541 U.S. 36, which held that when testimonial hearsay evidence is used against a defendant, the confrontation clause requires certain standards be met. By contrast, the 11th Circuit held in Proffitt v. Wainwright, 685 F.2d 1227 (1982), that the right to cross-examine adverse witnesses applies in capital sentencing. The 7th Circuit, however, has said the confrontation clause applies through the guilt phase but not the penalty phase in capital trials. Szabo v. Walls, 313 F.3d 398 (2002).

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