Cite as: 526 U. S. 314 (1999)
Scalia, J., dissenting
Our case law has long recognized a natural dichotomy between the guilt and penalty phases. The jury-trial right contained in the Sixth Amendment—whose guarantees apply "[i]n all criminal prosecutions," a term indistinguishable for present purposes from the Fifth Amendment's "in any criminal case"—does not apply at sentencing. Spaziano v. Florida, 468 U. S. 447, 462-463 (1984). Nor does the Sixth Amendment's guarantee of the defendant's right "to be confronted with the witnesses against him." (The sentencing judge may consider, for example, reports of probation officers and psychiatrists without affording any cross-examination.) See Williams v. New York, 337 U. S. 241, 252 (1949). Likewise inapplicable at sentencing is the requirement of the Due Process Clause that the prosecution prove the essential facts beyond a reasonable doubt. McMillan v. Pennsylvania, 477 U. S. 79, 92 (1986).
The Court asserts that refusing to apply Griffin would "truncate" our holding in Estelle v. Smith, 451 U. S. 454 (1981), that the Fifth Amendment applies to sentencing proceedings. Id., at 462. With the contrary indications in our case law, however, it seems to me quite impossible to read Estelle as holding, not only that the Fifth Amendment applies to sentencing as to guilt, but also that it has precisely the same scope in both phases. Thus the question before us, fairly put, is not whether we will "truncate" Estelle or create an "exception" to Griffin, but whether we will, for the first time, extend Griffin beyond the guilt phase. For the answer to that question, one would normally look to the historical understanding of the "no adverse inference" constitutional practice. Since, as described in Part I, there was no such practice, history is of no help here, except to suggest that a mistakenly created constitutional right should not be expanded.
Consistency with other areas of our jurisprudence points in the same direction. We have permitted adverse inferences to be drawn from silence where the consequence is a
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