Hearsay at sentencing hearings

Aug 27, 2009 Hearsay at sentencing hearings

Here are some ideas some colleagues recently suggested for responding in Virginia and beyond to prosecutorial objections about a defendant’s hearsay submissions at sentencing:

– Argue that if the presentence report is considered at sentencing, as well as any other hearsay from the prosecution, then what is good for the goose is good for the gander.

– Friend on Evidence provides that hearsay is admissible in sentencing proceedings. The Law of Evidence in Virginia, Charles E. Friend, 6th Ed at 734.

– See McCullough v. Commonwealth, 38 Va.App. 811 (2002) ("hearsay evidence is admissible during sentencing and may be used to establish an appropriate amount of restitution").

– See Smith v. Commonwealth, 52 Va.  App. 26, 30-32, 660 S.E.2d 691, ___ (2008) (permitting the prosecutor to enter hearsay unsworn restitution-related evidence at sentencing (which followed a guilty plea), where the information was previously made available to the defense and where the defense made no objection nor other response before the sentencing hearing.)

– Reference Virginia Const. art. 1 § 8 on the right to call for evidence in one’s favor.

Thanks to my colleagues for providing the foregoing ideas and information.

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