DUE PROCESS IN SENTENCING - A RIGHT TO REBUT THE PRESENTENCE REPORT

• NCJ Number: 31677
• Journal: Hastings Constitutional Law Quarterly Volume: 2 Issue: 4 Dated: (FALL 1975) Pages: 1065-1089
• Author(s): R A HARKNESS
• Date Published: 1975
• Length: 25 pages
• Corporate Author: University of California
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

EXAMINATION OF POLICY AND CONSTITUTIONAL CONSIDERATIONS INVOLVING DISCLOSURE AND REBUTTAL OF THE INFORMATIONAL BASIS FOR SENTENCING, INCLUDING DEFENDANT'S RIGHTS OF CONFRONTATION AND TO PRESENT EVIDENCE IN HIS OWN BEHALF.

Abstract

FEDERAL COURT DECISIONS LEADING TO JUDICIAL REFORM IN THESE AREAS ARE ALSO CITED, AND THE FEDERAL RULES OF CRIMINAL PROCEDURE AMENDMENTS ACT OF 1975 IS ANALYZED THE AUTHOR POINTS OUT THAT UNDER AMENDED RULE 32 (PRESENTENCE INVESTIGATION), THE DEFENDANT WILL HAVE BOTH THE RIGHT TO DISCLOSURE AND AN OPPORTUNITY, AT THE DISCRETION OF THE COURT, FOR REBUTTAL OF INFORMATION. HE CRITICIZES THE ACT, HOWEVER, DUE TO ITS FAILURE TO CLEARLY DEFINE THE PROCEDURE FOR RESOLVING ANY FACTUAL DETERMINATIONS MADE NECESSARY BY DISPUTED PRESENTENCE REPORT ALLEGATIONS. EMPHASIZED IS THE NEED FOR A FULL EVIDENTIARY HEARING WITH THE FORMAL SUBMISSION OF EVIDENCE AND THE DEFENDANT'S EXERCISE OF HIS RIGHT TO PRESENT WITNESSES AND HIS RIGHT TO CONFRONTATION AND CROSS-EXAMINATION.