Hearsay and Sentencing

Today a per curiam panel of the Eighth Circuit held that reliable hearsay may serve as the basis for a four-level sentencing increase.  United States v. Wallace, No. 04-1265  (8th Cir. May 23, 2005).  However, the panel did not discuss, nor did Wallace's attorney argue, whether Crawford v. Washington applied at Wallace's sentencing hearing.

In Crawford, Justice Scalia wrote: "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because a defendant is obviously guilty." Given the Blakely/Booker  line of cases, can't we also say that "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with sentencing fact-finding because a defendant is obviously guilty of the alleged conduct."

Precedent allows hearsay evidence at a sentencing hearing, and limits the scope of cross-examination.  But those precedents should be re-examined in light of Crawford where, as here, hearsay testimony caused a judge to sentence a defendant to a longer prison term.