even if Congress entirely abolished
the Federal Rules of Evidence, the Due Process Clause, as implemented
through the trial court's evidentiary gatekeeping function, would serve
to ensure the admission of only that evidence that comports with the
right to a fair trial.
Addressing the specific concerns raised by Defendants, even if Congress
abolished the hearsay rules or the entire Federal Rules of Evidence, the
requirements of the Sixth Amendment's Confrontation Clause and the Fifth
Amendment's Due Process Clause would fill the void to ensure the
accused's right to a fair trial. See Lilly, 527 U.S. at 123-24; White,
502 U.S. at 358 (noting that the Confrontation Clause imposes certain
requirements "as a predicate for the introduction of out-of-court
statements."); Green v. Georgia, 442 U.S. 95, 97 (1979) ("Regardless of
whether the proffered testimony comes within . . . [the] hearsay rule,
under the facts of this case its exclusion constituted a violation of the
Due Process Clause."); Chambers, 410 U.S. at 294; see also Washington v.
Schriver, 255 F.3d 45, 59 (2d Cir. 2001) (reviewing evidentiary ruling
regarding the preclusion of expert testimony for compliance with
constitutional guarantees); United States v. Chin, 224 F.3d 121, 124 (2d
Cir. 2000) (similar); United States v. Gallego, 191 F.3d 156, 166-69 (2d
Cir. 1999) (reviewing admission of hearsay evidence for compliance with
Sixth Amendment), cert. denied, 528 U.S. 1127 (2000); Hall, 165 F.3d at
1113; Felzcerek v. I.N.S., 75 F.3d 112, 116 (2d Cir. 1996); Dorsey v.
Irvin, 56 F.3d 425, 426 (2d Cir. 1995). As is relevant to the issues
raised by Defendants, the Due Process and Confrontation Clauses are
satisfied by evidence that carries "sufficient indicia of reliability and
trustworthiness." United States v. Tocco, 135 F.3d 116, 128 (2d Cir.
1998); see also Lilly, 527 U.S. at 236; White, 502 U.S. at 742 n. 8;
Maryland v. Craig, 497 U.S. 836, 846-47 (1990).
Contrary to Fell's conclusion that "Congress has . . . [provided] by
necessary implication that a defendant does not have a confrontation or
cross-examination rights at a capital sentencing proceeding,"
217 F. Supp.2d at 489, in altering the evidentiary scheme applicable to the
sentencing phase, Congress did not eliminate the constitutional baseline
for the admissibility of evidence in a criminal trial.*fn4 Congress
altered the rules of evidence to provide that information is admissible
without regard to the Federal Rules of Evidence with the exception that
evidence may be excluded if its probative value is outweighed (or, under
§ 848, substantially outweighed) by the danger of: (1) creating
unfair prejudice, (2) confusing the issues, or (3) misleading the
jury.*fn5 See 21 U.S.C. § 848(j);
18 U.S.C. § 3593(c). This scheme expressly provides
the trial court with the discretion necessary to exclude unreliable
and/or prejudicial evidence the admission of which would be fundamentally
unfair and, therefore, violate the defendant's right to a fair trial
under the Bill of Rights. See, e.g., United States v. Castillo,
140 F.3d 874, 883 (10th Cir. 1998); Lentz,
225 F. Supp.2d at 683-84; United States v. Waldon, No. 00-CR-436-J-25
(M.D.Fla. Sept. 30, 2002); United States v. Frank,
8 F. Supp.2d 253, 267-69 (S.D.N.Y. 1998); United States v.
McVeigh, 944 F. Supp. 1478, 1487 (D.Colo. 1996). By
including an equivalent to Fed.R.Evid.
403, Congress ensured that trial
judges have the ability to safeguard the accused's constitutional
rights, including the right of confrontation. See Lilly, 527 U.S. at 124
("[C]ourts must decide whether the [Confrontation] Clause permits the
government to deny the accused his usual right to force the declarant to
submit to cross-examination, the greatest legal engine ever invented for
the discovery of truth.") (internal quotations and citation omitted); see
also Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986) ("[T]rial judges
retain wide latitude insofar as the Confrontation Clause is concerned to
impose reasonable limits on . . . cross-examination based on concerns
about . . . harassment, prejudice, confusion of the issues, the witness'
safety, or interrogation that is repetitive or only marginally
The instant discussion can be compared to the constitutional attacks on
Fed.R.Evid. 414. Federal Rule of Evidence 404(b) generally precludes the
admission of evidence of prior crimes. This Rule was somewhat altered in
1994 by the implementation of Rule 414, which permits the admission of
evidence of similar crimes in child molestation cases, but leaves
Rule 404(b) unaltered with respect to other crimes. See LeMay, 260 F.3d at
Criminal defendants attacked Rule 414 contending that it violated
due process. In addressing this constitutional attack, the Ninth Circuit
first noted that "[t]he Constitution does not encompass all traditional
legal rules and customs." LeMay, 260 F.3d at 1024. "The introduction of
. . . evidence can amount to a constitutional violation only if its
prejudicial effect far outweighs its probative value." Id. at 1026. The
Ninth Circuit further noted that "[a]s long as the protections of
Rule 403 remain in place to ensure that potentially devastating evidence of
little probative value will not reach the jury, the right to a fair trial
remains adequately safeguarded." Id. at 1026. All other courts to
entertain the issue of the constitutionality of Rule 414 have similarly
concluded that the trial judges' discretion under Rule 403 saves
Rule 414. See Johnson v. Elk Lake Sch. Dist., 283 F.3d 138, 155 (3d Cir. 2002)
(noting that Rule 414 should be read together with Rule 403); Mound,
149 F.3d 799; Castillo, 140 F.3d at 883 ("Application of Rule 403 . . .
should always result in the exclusion of evidence that has such a
prejudicial effect [that it violates the due process right to a fair
trial]."); United States v. Enjady, 134 F.3d 1427 (10th Cir.), cert.
denied, 525 U.S. 887 (1998).
As previously noted, the standards for excluding otherwise relevant
evidence in Rule 403 are, for all intents and purposes, the same ones
Congress retained in the Death Penalty Statutes. Thus, by analogy, the
provisions in the Death Penalty Statutes similarly should result in the
exclusion of evidence that would violate the accused's right to a fair
trial. The standards contained in 21 U.S.C. § 848(j) and
18 U.S.C. § 3593(c) are sufficient to enable the trial courts to
exclude evidence at the sentencing phase that would run afoul of the
constitutional right to a fair trial, including evidence that might
deprive a defendant of his right to confrontation or cross-examination.
B. Whether the Death Penalty Statutes Violate the Grand Jury Clause of
the Fifth Amendment
Defendants also argue that the Death Penalty Statutes violate the Fifth
Amendment's Indictment Clause. Defendants contend that the Death Penalty
Statutes do not expressly provide for the indictment of the aggravating
factors, it is impermissible for the prosecution to fashion a remedy for
this "Ring problem"