HIDDEN ISSUE OF SENTENCING - BURDENS OF PROOF FOR DISPUTED ALLEGATIONS IN PRESENTENCE REPORTS

• NCJ Number: 55728
• Journal: Georgetown Law Journal Volume: 66 Issue: 6 Dated: (AUGUST 1978) Pages: 1515-1549
• Author(s): R L GOLDMAN; J W MULLENIX
• Date Published: 1978
• Length: 35 pages
• Corporate Author: Georgetown University
• Publication Format: Article
• Publication Type: Report (Study/Research)
• Language: English
• Country: United States of America

Annotation

THE ISSUE OF WHICH PARTY SHOULD BEAR THE BURDEN OF PROVING THE TRUTH OR FALSITY OF DISPUTED ALLEGATIONS WHEN DEFENDANTS CHALLENGE THE ACCURACY OF INFORMATION IN THEIR PRESENTENCE REPORT IS EXAMINED.

Abstract

THE DEVELOPMENT OF PROCEDURAL DUE PROCESS AT SENTENCING IS BRIEFLY OUTLINED, FOLLOWED BY A SURVEY OF THE DIFFERENT APPROACHES COURTS HAVE TAKEN IN HANDLING THE SPECIFIC PROBLEM OF DISPUTED ALLEGATIONS IN PRESENTENCE REPORTS. A MODEL THEN IS PRESENTED FOR THE ALLOCATION OF THE BURDENS OF PRODUCTION AND PERSUASION AND THE STANDARD OF PERSUASION. THE MODEL IS BASED ON A BALANCING OF THE VALUES REFLECTED IN THE PURPOSES OF SENTENCING, THE INTEREST OF JUDICIAL ECONOMY, AND THE GUARANTEE OF FUNDAMENTAL FAIRNESS. THE STATUTORY PROCEDURES AND VALUES EMBODIED IN THE SENTENCING PROVISIONS OF THE PROPOSED FEDERAL CRIMINAL CODE ARE ANALYZED IN RELATION TO THE SUGGESTED MODEL. PROCEDURAL DUE PROCESS HAS BEEN SLOW TO DEVELOP IN SENTENCING PROCEEDINGS. ALTHOUGH THE INITIAL DETERMINATION OF GUILT IS SURROUNDED BY NUMEROUS PROTECTIONS, THE MODE OF DETERMINING THE CONSEQUENCES OF THAT GUILT HAS REMAINED BEYOND THE REACH OF COMPREHENSIVE PROCEDURAL STANDARDS. WITH THE EXTENSION OF PROCEDURAL DUE PROCESS TO OTHER, FORMERLY IMMUNE PROCEEDINGS, SENTENCING STANDARDS MUST BE REEXAMINED TO ENSURE THE FAIR TREATMENT OF A CONVICTED DEFENDANT. TRADITIONALLY, SUCH PROCEDURAL MATTERS HAVE BEEN DECIDED BY THE COURTS, BUT CONGRESS ALSO MUST AID IN THE FORMULATION OF CONSTITUTIONAL SAFEGUARDS. AN INTEGRAL PART OF THOSE SAFEGUARDS MUST BE THE RATIONAL ALLOCATION OF THE BURDENS OF PRODUCTION AND PERSUASION AND THE ADOPTION OF A REASONABLE STANDARD OF PERSUASION. WHEN A DEFENDANT CHALLENGES AN UNSUPPORTED ALLEGATION IN A PRESENTENCE REPORT, DUE PROCESS REQUIRES THE GOVERNMENT TO SHOW THE TRUTH OF THAT ALLEGATION BY CLEAR AND CONVINCING EVIDENCE. THE BALANCE SHIFTS, HOWEVER, WHEN THE PROSECUTION PROVIDES FACTS IN SUPPORT OF ITS ALLEGATONS. IN THAT INSTANCE, THE DEFENDANT SHOULD BE REQUIRED TO PRODUCE SUFFICIENT EVIDENCE TO CAST SOME DOUBT ON THE DISPUTED ALLEGATION. IF THE BURDEN IS MET, THE GOVERNMENT MUST THEN SHOW THE TRUTH OF THE ALLEGATION BY CLEAR AND CONVINCING EVIDENCE. EXTENSIVE NOTES CONTAIN REFERENCES. (AUTHOR ABSTRACT MODIFIED--RCB)