ess, States may authorize the
conduct, after conviction and sentence, of nonadversary proceedings from
which the accused has been excluded and denied the privilege of
confrontation and cross-examination, has been examined by the Court in
two recent cases. In Williams _v._ New York,[950] the Supreme Court
rejected the contention that the due process clause requires that a
person convicted of murder be permitted to cross-examine probation
officers as to his prior criminal record when the trial judge, in the
exercise of discretion vested in him by law, considers such information,
obtained outside the courtroom, in determining whether to abide by a
jury's recommendation of life imprisonment or to impose a death
sentence. Emphasizing the distinction between evidentiary rules
applicable to the conduct of criminal trials, which are confined to the
narrow issue of guilt, and sentencing procedures which pertain to the
determination of the type and extent of punishment after the issue of
guilt has been decided, the Court disposed of the petitioner's appeal by
declaring that, "modern concepts individualizing punishment have made it
all the more necessary that a sentencing judge not be denied an
opportunity to obtain pertinent information by a requirement of rigid
adherence to restrictive rules of evidence properly applicable to the
trial."[951] By a similar process of reasoning, in Solesbee _v._
Balkcom,[952] the Court sustained a Georgia statutory procedure granting
the governor discretionary authority, with the aid of physicians
appointed by himself, to determine, without opportunity for an adversary
hearing or for judicial review, whether a condemned convict has become
insane and, if so, whether he should be committed to an insane asylum.
Likening the function thus vested in the governor to the power of
executive clemency, the Supreme Court reiterated that "trial procedure
safeguards are not applicable to the process of sentencing," and
concluded with the observation that the Georgia procedure is amply
supported by "the universal common-law principle that upon a suggestion
of insanity after sentence, the tribunal charged with responsibility
must be vested with broad discretion in deciding whether evidence shall
be heard. * * * The heart of the common-law doctrine has been that a
suggestion of insanity after sentence is an appeal to the conscience and
sound wisdom of the particular tribunal which is asked to postpone
sentence."[9