NCJ Number
88235
Journal
Loyola University Law Journal Volume: 13 Issue: 4 Dated: (Summer 1982) Pages: 935-984
Date Published
1982
Length
28 pages
Annotation
An analysis of the use of past arrests which did not result in conviction and of perjury perceived at trial as sentencing factors in Illinois concludes that a sentencing judge should avoid possible due process infringements by specifying how each factor affected the sentence imposed.
Abstract
Three exceptions exist to the general inadmissibility of evidence regarding prior arrests not resulting in conviction. Such evidence is admissible if the past arrest was nonprejudicial to the defendant or was presumptively disregarded by the sentencing judge. The evidence is also admissible if the past arrest was relevant to the assessment of the defendant's moral character and rehabilitative potential. In addition, it is admissible if the evidentiary reliability of the past arrest was established through cross-examination of the State's witnesses who testified at the sentencing hearing. If this cross-examination is to be as effective as possible, the defendant should receive reasonable prior notice of the State's planned presentation at the sentencing hearing. The consideration of perceived perjury can also result in sentence increases based on crimes the defendant might not have committed, because it lowers the chances that defendants will testify in their own defense. They thus will not have the opportunity to express remorse, which has traditionally affected decisions regarding a defendant's potential for rehabilitation. Until perceived perjury is deemed an impermissible sentencing factor, the practice of issuing a specific explanation of the factors affecting the sentence would alleviate the abuse possible when perceived perjury and other factors are combined during a rehabilitation analysis at sentencing. Footnotes are provided. (Author summary modified)