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National Crime Victim Law Institute

United States v. Green, — Fed. Appx. —, No. 17-2175, 2018 WL 1733239 (3d Cir. Apr. 10, 2018)

April 26, 2018

Defendant pleaded guilty to indecent exposure and was sentenced to imprisonment.  At the sentencing hearing, the victim gave a victim impact statement on the record.  Defense counsel sought to cross-examine her and the government objected.  The district court sustained the objection.  Defendant appealed the district court’s ruling prohibiting the cross examination of the victim at his sentencing hearing, arguing that it violated his Confrontation Clause and due process rights.  The court began by noting that under the Crime Victims’ Rights Act (CVRA), 18 U.S.C. § 3771, crime victims have the right to be reasonably heard at any public proceeding in the district court involving release, plea, sentencing, or any parole proceeding, and that courts may not limit victims to a written statement.  The court explained that because the victim in this case made her statement in the sentencing context, the law is clear that the Confrontation Clause does not apply.  Accordingly, the court found that he did not have the right to confront the victim at sentencing.  The court further held that defendant’s due process rights were not violated by the ruling.  The court explained that the Due Process Clause requires that the victim impact statement must have some “minimal indicum of reliability beyond mere allegation” to be admissible at sentencing hearings.  The court found that here, defendant did not contend that the victim’s testimony was insufficiently reliable to be properly considered by the district court in imposing sentence; instead, he argued that his due process rights entitled him to cross-examine the victim because she testified to the circumstances of the offense.  The court concluded that this assertion is refuted by controlling law and rejected it.  Accordingly, the sentence was affirmed.