Confrontation, Due process, and the Use of Hearsay: The Florida Evidence Code Was Not Meant to Apply to Sentencing

Hon. William H. Burgess, III, B.C.S.

Accuracy and integrity of fact-finding in criminal sentencing is determined by the burden of proof, the reliability of the underlying evidence, and the opportunity for review and response. The balance of these factors promotes fairness in the individual case and in the overall pattern of sentences over time. Such accuracy is not an absolute in every type of case, however, but is measured against the requirements of the law applicable in the circumstances. Generally, the more severe the potential sanction, the higher the degree of accuracy and reliability of the evidence required to impose the sanction.

Generally

Sentencing proceedings are, as a matter of constitutional law and of longstanding practice, not subject to the same evidentiary restrictions as trial proceedings. Tribunals passing on the guilt of a defendant always have been hedged in by strict evidentiary and procedural limitations. Both before and since the American colonies became a nation, however, courts in America and in England practiced a policy under which a sentencing judge could exercise a wide discretion in the sources and types of evidence used to assist him or her in determining the kind and extent of punishment to be imposed within limits fixed by law.¹

While the “beyond a reasonable doubt” standard applies to the proof of facts necessary to conviction, it does not follow that the same standard applies to the proof of facts at sentencing. In sentencing, the preponderance standard satisfies due process.² The preponderance of the evidence standard of proof is a lesser burden for the State to satisfy than is necessary to establish a defendant’s guilt, but it is not without rigor. It certainly does not relieve the sentencing court of exercising the critical fact-finding function that has always been inherent in the sentencing process. The difference in the procedures followed and the standard of proof applied at the guilt and sentencing phases reflects the judgment that a convicted criminal is entitled to less process than a presumptively innocent criminal defendant, as well as the concern that overburdened trial courts would be greatly disserved by the time-consuming hearings that more intensive procedural protections would require. In addition, the issues at each stage differ. At the trial itself, the guilt or innocence of the defendant is the sole issue; to avoid prejudice, for example, evidence of other misconduct and other collateral matters must generally be excluded.³

In sentencing, the court oftentimes has to rely on facts that are incapable of being proven beyond a reasonable doubt in order to determine a sentence that is fairer, more appropriate, and more just than could be determined without such information. Types of evidence normally excluded at trial as being unduly prejudicial in the decision of guilt or innocence, but which are essential to sentencing decisions, include evidence related to character, prior criminal history, future dangerousness, and rehabilitative potential. Matters relevant to sentencing also can be somewhat amorphous and vague. To overcome this, there often is formal or tacit agreement between the defense and the prosecution allowing the use of evidence at sentencing that would not be admissible at trial, such as unsworn letters from victims, family members, and other persons affected directly or indirectly by the defendant’s offense. Sometimes the parties agree to, or compromise on, reliability issues in order to address a relevant sentencing factor. In any event, a lawful sentence can be imposed with some degree of uncertainty or doubt, so long as the sentence is reasonable, within the bounds of the law, and not the result of material error or abuse of discretion.

Initially, sentencing in the United States was mostly determinate, and so there was little or no fact-finding at sentencing. The notion of retributive justice in the lex talionis, that “the punishment must fit the crime,” was prevalent; punishments were often fixed for certain crimes and there was little or no fact-finding at sentencing. Sentencing was, to a large extent, more ceremony than deliberate fact-finding.⁴ Over time, theories of retributive justice gave way to theories of rehabilitative justice, and the focus of sentencing shifted from the gravity of the offense to the dangerousness of the offender. While sentencing became largely indeterminate and focused on rehabilitation, there were relatively few standards for fact-finding, giving judges wide discretion in the information they could consider. With discretionary, indeterminate sentencing, the courts tried to tailor sentences to goals of treatment and rehabilitation, as well as to punishment, and increasingly considered a defendant’s individual abilities and disabilities in determining a sentence. Courts obtained information about defendants from prosecutors, defense attorneys, probation officers, family members, acquaintances, mental health professionals, and other sources. Parole boards were formed to provide the ability to return rehabilitated inmates to the community before the ends of their prison terms. These boards were not involved in the initial sentencing process but evaluated the dangerousness of inmates and had the authority to determine the actual length of time an inmate served in prison.⁵ One strict limit on judges that remained, however, was that judges could not initiate independent investigations, as was allowed magistrates in the civil law systems of Europe. This made judges entirely dependent upon others for the information they relied upon in sentencing.

The purpose of a trial is to determine whether a defendant is guilty of having engaged in certain criminal conduct of which the defendant has been specifically accused. Rules of evidence have been fashioned for criminal trial which narrowly confine the trial contest to evidence that is strictly relevant to the particular offense charged. These rules rest in part on a necessity to prevent a time-consuming and confusing trial of collateral issues. They are also designed to prevent tribunals concerned solely with the issue of guilt of a particular offense from being influenced to convict for that offense by evidence that the defendant had habitually engaged in other misconduct. A sentencing judge, moreover, is not confined to the narrow issue of guilt. His or her task within fixed statutory or constitutional limits is to determine the type and extent of punishment after the issue of guilt has been determined. Highly relevant—if not essential—to his or her selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant’s life and characteristics.⁶ At the same time, pressure on courts to apply complicated sentencing laws to the facts in order to formulate fair, proper, lawful, and individualized sentences on the basis of reliable information has supported lower evidentiary standards at sentencing than at trial.

Role of the Judge at Sentencing

Judges are, above all, presumed to be competent to impose lawful and appropriate sentences based on the information made available to them. They are expected to give each relevant piece of information its appropriate weight, and to disregard information that is irrelevant, unreliable, or inappropriate to the proceedings. They also are expected to act within the bounds of the law and judicial discretion, and not to behave in an unethical or vindictive manner when imposing sentence.

Judicial sentencing hearings are in the nature of open-ended inquiries, except where there is an agreement between the defense and the prosecution as to the sentence, or where the sentence is fixed by law and there is no judicial discretion. A careful judge assesses a defendant’s culpability, propensity, and rehabilitative potential from what is known generally of the defendant’s life and condition, his or her general course of behavior in the past, his or her family, education, vocation, medical and psychological condition, and so on, and from what is known of particular events and episodes, usually but not necessarily criminal, in which the defendant showed himself or herself to be criminally threatening in “fact.” Such “facts,” more precisely than a general assessment of a defendant’s character, inform the court’s prediction of future criminal conduct.⁷ Not all of the facts relevant to sentencing are determined at the sentencing hearing, however. The judge’s assessment of the defendant may begin before the sentencing, and relevant facts may be determined beforehand, e.g., in the original arrest affidavit, during pretrial hearings and conferences, and during the course of the trial. The sentencing judge may have actual familiarity with the defendant from a prior case, or cases, and the defendant may be being sentenced in more than one case at the sentencing hearing (e.g., for combinations of violations or supervision and new charges, for multiple open cases, and so on).

This is why, for example, attorneys for the prosecution and the defense are generally allowed to offer oral summaries and anecdotal evidence on any topic thought to be relevant to the particular disposition the attorneys are seeking on behalf of the defendant or the State.⁸ Formalized, trial-like procedures would exclude a significant amount of the information judges rely on at sentencing, which is why the United States Supreme Court has held that the Due Process Clause should not be applied to require that evidentiary procedures at sentencing match evidentiary procedures at trial.⁹

Confrontation Under the Sixth Amendment

The right of confrontation is contained in the Sixth Amendment to the United States Constitution and reads in relevant part: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him . . .”¹⁰ The Florida constitution contains a similar provision.11 The contours of the Confrontation Clause were outlined by the United States Supreme court in Crawford v. Washington, where the Court held that an out-of-court statement by a witness that is testimonial is barred from use at trial, under the Confrontation Clause, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness, regardless of whether such a statement is deemed reliable by the court.¹² Of course, if the witness is available, there is no issue under Crawford because the defense counsel can cross-examine the witness.¹³ Nontestimonial evidence is not subject to confrontation because it is not inherently testimonial and so fails to raise the same concerns as testimonial evidence: Stated otherwise, because it is not prepared in the shadow of criminal proceedings, it lacks the accusatory character of testimony.¹⁴

The primary object of the Confrontation Clause was is to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the criminal defendant in lieu of a personal examination and cross-examination of the witness, in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling the witness to stand face to face with the jury in order that they may look at the witness, and judge by the witness’s demeanor upon the stand and the manner in which the witness gives testimony whether the witness is worthy of belief.¹⁵

The Confrontation Clause has to be interpreted in light of the original meaning of the Sixth Amendment, and the significance of the words “criminal prosecutions,” as opposed to broader formulations such as “criminal proceedings” or “criminal cases.” The analysis begins with William Blackstone, whose works constituted the preeminent authority on English law for the founding generation of the United States.¹⁶

Blackstone organized the general stages of the “regular and ordinary method of proceeding in the courts of criminal jurisdiction” into twelve successive categories: (1) arrest; (2) commitment, and bail; (3) prosecution; (4) process upon indictment; (5) arraignment, and its incidents; (6) plea, and issue; (7) trial, and conviction, (8) benefit of clergy; (9) judgment, and its consequences; (10) reversal of judgment; (11) reprieve or pardon; and (12) execution.¹⁷ Blackstone did not describe the entire criminal process as a “prosecution,” but rather listed it as the third step in twelve successive steps. A more complete understanding of what Blackstone meant by prosecution is found in his chapter on the modes of prosecution.¹⁸ Blackstone explained that “prosecution” is the manner of an offender’s “formal accusation,” as distinct from earlier stages of the process involving a different kind of accusation: the allegation of criminal conduct necessary to justify arrest and detention. By formal accusation, Blackstone meant indictment (“the most usual and effective means of prosecution"¹⁹), presentment, or information. “Prosecution,” as Blackstone used the term, referred to “instituting a criminal suit”²⁰ by filing a formal charging document (indictment, presentment, or information) upon which the defendant was to be tried in a court with power to punish the alleged offense. This usage matches the ordinary meaning of “prosecution” in the early days of the United States.²¹

In the strictest sense, prosecution begins with formal accusation, ends with judgment, and does not extend to sentencing. The right of confrontation is, thus, a trial right that applies during the guilt or innocence phase of a prosecution, but not to sentencing.²² Because the right to confrontation is a trial right that does not extend to sentencing proceedings, a trial court may use at sentencing reliable hearsay that would be inadmissible at trial under Crawford.²³ An exception in Florida is that the Florida Supreme Court has applied the confrontation clause to sentencing in capital cases.²⁴

Due Process

The Fourteenth Amendment to the U.S. Constitution provides that no state shall “deprive any person of life, liberty, or property, without due process of law.”²⁵ Florida’s constitution similarly provides that “No person shall be deprived of life, liberty or property without due process of law.”²⁶ These clauses, which echo the promise of the 1215 Magna Carta of Great Britain,²⁷ individually and in combination, create an obligation on the State of Florida to operate within the law and provide fair procedures for government and protection of substantive individual rights not related to procedure.
The due process clause guarantees a convicted defendant’s right to be sentenced on the basis of accurate information.²⁸ It follows that a defendant may not be sentenced on the basis of materially inaccurate information,²⁹ groundless inferences,³⁰ or unfounded assumptions.³¹ A convicted defendant has a due process right at sentencing to challenge the material accuracy of any discrete fact not admitted by the defendant, found by a jury, proved in judicial proceedings leading to the defendant’s present conviction, proved by witnesses who were subject to confrontation and cross-examination, or otherwise judicially proved, if the fact is relied upon by the sentencing judge to (1) increase the punishment of the defendant beyond the statutory minimum, or (2) enhance the possible punishment beyond the statutory maximum for the offense for which the defendant was convicted.³² Stated otherwise, discrete facts admitted by the defendant, found by a jury, proved in judicial proceedings leading to the defendant’s present conviction, proved by witnesses who were subject to confrontation and cross-examination, or judicially proved in any other way may be relied upon by the sentencing judge without the requirement for further testing in a separate sentencing hearing.

The rule as to such discrete facts does not apply to information that does not form a specific basis of the sentence imposed: Once the guilt of the accused has been properly established, the sentencing judge, in determining the kind and extent of punishment to be imposed, is not restricted to evidence derived from the examination and cross-examination of witnesses in open court but may, consistent with the due process clause, consider responsible unsworn or “out of court” information relative to the circumstances of the crime and to the convicted person’s life and characteristics.³³ Where, however, the sentencing phase constitutes a separate criminal proceeding for the purpose of fixing the penalty to be suffered by a person convicted of a crime on the basis of finding any fact that was not an ingredient of the crime for which the person was found guilty, due process requires that a defendant have the opportunity to confront and cross-examine any testifying witnesses.³⁴

Effect of the Guidelines and the Criminal Punishment Code

The Criminal Punishment Code (CPC), and the sentencing guidelines that were in force before the CPC, narrowed the categories of information considered relevant to sentencing. A major change accompanying the guidelines and the CPC was the determinacy of the effect of a piece of information (e.g., the primary offense, secondary offenses, and prior convictions), upon a sentence. Previously, each piece of information concerning a defendant’s background and conduct simply constituted one element in the assemblage of information from which the sentencing judge derived the sentence. Now, in contrast, one can often determine the exact effect of a certain piece of information upon the ultimate sentence by isolating its value on a scoresheet. However, the sentencing judge still considers information not strictly relevant to a defendant’s guilt or innocence, such as uncharged conduct, when fashioning a sentence, and the judge still requires full and complete information as to those categories deemed relevant. Accordingly, because the sentencing judge still considers information not strictly relevant to a defendant’s guilt and needs to conduct a broad inquiry to obtain that information, the CPC and the sentencing guidelines did not fundamentally transformed the search for information at the sentencing stage.

The guidelines and CPC simply reflect the Florida Legislature’s decision to limit the scope of the sentencing judge’s discretion and do not provide a basis for increased procedural protections at sentencing. The sharp distinction between conviction and sentencing that antedated the sentencing guidelines and the CPC still exists under the CPC regime, as it did under the guidelines regime. The guilt phase remains the stage at which the fact-finder determines whether a crime was committed and whether the defendant was the person who committed the crime, while at the sentencing stage the court determines the extent to which a defendant broke the law and what punishment would be appropriate. At the latter stage the court may consider reliable, relevant conduct in determining a defendant’s culpability, even if such conduct would be inadmissible at trial.

Use of Hearsay in Sentencing

One of the biggest challenges in sentencing is defining the permissible use of hearsay.
In order to encourage witnesses to put forth their best efforts to tell the truth, the whole truth, and nothing but the truth, and to expose inaccuracies which may be present as to perception, memory, narration, and sincerity, the Anglo-American tradition has developed three conditions under which witnesses are required to testify at trial: oath, presence, and cross-examination. The rule against hearsay is designed to ensure compliance with these conditions.³⁵

“Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.³⁶ A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement and the statement is: (a) inconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition; or (b) consistent with the declarant’s testimony and is offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication; or (c) one of identification of a person made after perceiving the person.³⁷ The Florida Evidence Code (FEC) recognizes 24 exceptions to the inadmissibility of hearsay where the availability of the declarant is immaterial,38 and six exceptions where the declarant is unavailable.³⁹

Hearsay that would be admissible at trial is admissible at sentencing. The law as regards the use at sentencing of hearsay that would be inadmissible at trial is uneven and not altogether clear, but appears to be dependent on the nature of the proceeding, the particular issue sought to be established at sentencing, and the severity of the sanction to be imposed.

Historically, hearsay has been admitted at noncapital sentencing, so long as it is accompanied by some minimal indicia of reliability.⁴⁰ The judge’s subjective determination of whether the hearsay is sufficiently reliable to warrant credence depends on the circumstances in each case. In the least, the hearsay must contain more than unsubstantiated rumor or second-hand knowledge, and the opposing party being given an adequate opportunity to challenge its reliability and present relevant evidence in rebuttal. An example would be the use of a presentence investigation report in a case involving a plea without trial, where the sentencing court must make its own determination of credibility from the information provided in the report.⁴¹ Judicial findings forming the basis for specific sanctions can not, however, be based solely on hearsay where the defendant makes a proper objection to its admission.⁴²

The Criminal Punishment Code (CPC) appears to support this view. Pursuant to section 921.002, Fla. Stat., the CPC embodies the principles that, at sentencing, the penalty imposed is commensurate with the severity of the primary offense and the “circumstances surrounding” the primary offense, and the severity of the sentence increases with the “length and nature” of the offender’s prior record.⁴³ This section also provides that departures below the lowest permissible sentence established by the CPC be made only when “circumstances or factors” reasonably justify the mitigation of the sentence by a preponderance of the evidence.⁴⁴ The same language is found in section 921.001, pertaining to the former sentencing guidelines.⁴⁵ Neither of these statutes contain any restriction on the use of hearsay. This is also supported by Section 921.231, Fla. Stat., pertaining to presentence investigation reports used at sentencing under Rule 3.720(b), which requires such reports to include extensive amounts of hearsay, such as that which would be inherent in “a complete description of the situation surrounding the criminal activity with which the defendant has been charged.”⁴⁶

The rules of criminal procedure also appear to support this view. Rule 3.170(a) provides that if the sworn complaint charges the commission of a misdemeanor, the defendant may plead guilty to the charge at the first appearance under Rule 3.130, and the judge may thereupon enter judgment and sentence without the necessity of any further formal charges being filed.⁴⁷ In order for the first appearance judge to be able to ascertain whether there is a lawful basis to accept a plea from the defendant and impose sentence, the judge has to rely almost exclusively on the prosecutor’s oral summation of the facts of the case or on the hearsay narrative contained in the arrest affidavit, or both, neither of which would be admissible at trial.

Similarly, Rule 3.720(b) provides in relevant part that as soon as practicable after the determination of guilt and after the examination of any presentence reports, the court must order a sentencing hearing at which the court must entertain submissions and evidence by the parties that are relevant to the sentence.⁴⁸ The rule does not define “submissions” and does not expressly permit or prohibit the admission of hearsay evidence. In practice, as with procedures for a change of plea, the submissions and evidence of the parties normally are laden with hearsay that would be inadmissible at trial. Examination of a presentence report also, of necessity, exposes the court to a range of hearsay collected by the preparer.

Although supervision (probation or community control) revocation may constitute a part of the sentencing process, “criminal prosecution” concludes with the determination of guilt of the crime charged, not with a determination that a later violation of supervision has occurred. As such, the testimonial hearsay rule set forth in Crawford⁴⁹ does not apply in supervision revocation proceedings.⁵⁰ While there is no statutory authorization for the use of nontestimonial hearsay in revocation of probation or community control hearings, the Florida Supreme Court has created a partial exemption from the hearsay rule for such proceedings. The Court has found that

[S]uch hearings are informal and do not take the course of a regular trial, neither does the evidence have the same objective as that taken at a regular trial. Its purpose is to satisfy the conscience of the court as to whether the conditions of the ... sentence have been violated. A secondary purpose is to give the person accused ... a chance to explain away the accusation against him, but even this does not contemplate a strict or formal trial.⁵¹

Trial courts have broad discretion to revoke supervision, but this discretion must be exercised in accordance with the requirements of due process.⁵² While hearsay is admissible at supervision revocation hearings, supervision cannot be revoked solely on the basis of hearsay, and the hearsay must be corroborated by some non-hearsay evidence.⁵³ Due process protections, and limits on the use of hearsay, increase in habitualized sentencing under section 775.084, Fla. Stat. The evidentiary standards for determining whether a defendant is a habitual felony offender, a habitual violent felony offender, a three-time violent felony offender, or a violent career criminal are that in a separate proceeding after the defendant’s guilt has been determined:

1. The court obtains and considers a presentence investigative report prior to the imposition of sentence.

2. Except for the presentence investigative report, all evidence presented must be presented in open court with full rights of confrontation, cross-examination, and representation by counsel.

3. Each of the findings required as a basis for such sentence must be found to exist by a preponderance of the evidence.

4. If the court, in a separate proceeding, determines that the defendant meets the criteria for imposing such sanction, the court must sentence the defendant as a habitual felony offender, habitual violent felony offender, or violent career criminal unless the court finds that such sentence is not necessary for the protection of the public.⁵⁴ If the court finds that the defendant meets the criteria for imposing the sanction of three-time violent felony offender, the court must sentence the defendant as a violent felony offender.⁵⁵

There are no constitutional or statutory objections to the sentencing court relying on presentence investigation reports in section 775.084 proceedings, as in ordinary proceedings, but section 775.084, construed in the light of due process requirements, requires that hearsay recitations in the report of unproved criminal activity must be corroborated, if contested, by witnesses subject to confrontation and cross-examination by the defendant.⁵⁶

In capital sentencing, section 921.141, Fla. Stat., provides that evidence may be presented at capital sentencings as to any matter that the court deems relevant to the nature of the crime and the character of the defendant and shall include matters relating to any of the aggravating or mitigating circumstances enumerated in section 921.141(6) and (7), and that any such evidence which the court deems to have probative value may be received, regardless of its admissibility under the exclusionary rules of evidence, provided the defendant is accorded a fair opportunity to rebut any hearsay statements. However, this provision does not authorize the introduction of any evidence secured in violation of the Constitution of the United States or the Constitution of the State of Florida.⁵⁷ This rule applies to the defendant as well as to the State.⁵⁸ When a defendant challenges the admission of hearsay evidence during the penalty phase of a capital case, moreover, the reviewing court examines whether the defendant had the opportunity to rebut the hearsay, and the fact that the defendant did not or could not rebut this evidence does not make it inadmissible.⁵⁹

In sentencing juveniles to adult sanctions for certain homicides in a separate proceeding under section 921.1401(2)(a), Fla. Stat., the court is required to consider a number of sentencing factors that, of necessity, would include large amounts of hearsay.⁶⁰ In reviewing sentences for modification under section 921.1402(6), Fla. Stat., for persons convicted of specified offenses committed while they were juveniles, the sentencing court must consider a range of information⁶¹ that unavoidably call for a measure of hearsay.

Effect of the Florida Evidence Code

The Florida Evidence Code (FEC) promotes stability and consistency in the law by defining standards of admissibility in specific, recurring situations in order to facilitate the search for truth by allowing decisions to be based on evidence which is credible and reliable. It accomplishes this by filtering out evidence which is unreliable and untrustworthy or which will not otherwise assist in the resolution of factual issues, and by limiting judicial discretion to do otherwise.⁶²

The effect of the FEC on the use at sentencing of hearsay evidence that would be inadmissible at trial is a matter of debate, because the language of the code appears at odds with current practice and the language of other statutes and the procedural rules surrounding sentencing. Section 90.103, Fla. Stat., sets forth the scope and applicability of the FEC, providing in relevant part that “[u]nless otherwise provided by statute, this code applies to the same proceedings that the general law of evidence applied to before the effective date of this code”⁶³ and that “[t]his act shall apply to criminal proceedings related to crimes committed after the effective date of this code ... "⁶⁴ Section 90.802, Fla. Stat., flatly states, “Except as provided by statute, hearsay evidence is inadmissible.”⁶⁵ This has led to a conflict between the Second and Fourth District Courts of Appeal, wherein the Fourth District has held that hearsay is admissible in non-capital sentencing hearings, absent a request to habitualize the defendant,⁶⁶ and the Second District has held more recently that hearsay is inadmissible at sentencing absent a statutory exception.⁶⁷

Conclusion

The FEC was enacted at a time when it was generally understood throughout the legal profession in Florida that a judge could take into consideration anything he or she wanted to take into consideration at sentencing, and that the FEC would have little application to the sentencing process. This notion has been consistent with the general practice in the criminal courts since the FEC was enacted, although never made explicit in the law. The creators of the FEC did not enumerate the proceedings to which the FEC would not apply because they did not know what all of those proceedings would be at the time the FEC was created. Hence, the FEC does not have a rule of limitation as does the federal evidence code⁶⁸ and the evidence codes of such states as Michigan,⁶⁹ Minnesota,⁷⁰ North Carolina,⁷¹ Utah,⁷² and Wisconsin,⁷³ as examples.
One way to reconcile the language of the FEC with the other statutes and rules would be to construe section 90.103, Fla. Stat., to mean that while the FEC applies to sentencing, it does so permissively and does not preempt longstanding practice or other applicable statutes or rules regarding sentencing. Another, more direct and effective, way would be for the legislature to amend the FEC so that, similar to the federal evidence code and the evidence codes of other states, it is clear that the FEC does not apply to sentencing. Until such reconciliation occurs, the law on the use of hearsay at sentencing will remain uncertain in some aspects.

April 19, 2019

NOTES

¹Williams v. People of State of N.Y., 337 U.S. 241, 246, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949).

²See McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986).

³See U.S. v. Wise, 976 F. 2d 393, 397 (8th Cir. 1992).

⁴Minimum mandatory sentencing with no judicial discretion to mitigate, such as under § 775.082(9), Fla. Stat., the Prison Releasee Reoffender Punishment Act (PRRPA), is a modern example of sentencing that is largely ceremonial once the defendant has been found to qualify for sentencing under that statute.

⁵With the elimination of parole in Florida, determinations of dangerousness are the responsibility of the judge at initial sentencing or at resentencing.

⁶Williams v. People of State of N.Y., 337 U.S. 241, 246-247, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949).

⁷See Adams v. State, 376 So. 2d 47, 55 (Fla. 1st DCA 1979).

⁸See Fla. R. Crim. P. 3.172(a) and 3.720(b).

⁹Williams v. People of State of N.Y., 337 U.S. 241, 250, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949).

¹⁰U.S. Const. amend. VI.

¹¹“In all criminal prosecutions the accused shall . . . have the right . . . to confront at trial adverse witnesses . . .” Art. I, § 16(a), Fla. Const.

¹²Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d177 (2004).

¹³Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d177 (2004), n. 9 (“[W]hen the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements”), citing California v. Green, 399 U.S. 149, 162, 90 S .Ct. 1930, 26 L. Ed. 2d 489 (1970).

¹⁴U.S. v. Cantellano, 430 F. 3d 1142, 1145 (Fla. 11th Cir. 2005).

¹⁵Mattox v. U.S., 156 U.S. 237, 242-43, 15 S. Ct. 337, 39 L. Ed. 409 (1895) (where a witness for the government dies after the first trial, the reading in evidence on the second trial of a transcribed copy of the reporter’s stenographic notes of his testimony is not inhibited by the constitutional provision that the accused shall be confronted with the witness against him); Crawford v. Washington, 541 U.S. 36, 50, 124 S. Ct. 1354, 158 L. Ed. 2d177 (2004) (“[T]he principal evil which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.”).

¹⁶See Alden v. Maine, 527 U.S. 706, 715, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999).

¹⁷William Blackstone, Commentaries On the Laws of England, Book 4 (Oxford: Clarendon Press 1769) 286.

¹⁸William Blackstone, Commentaries On the Laws of England, Book 4, Chapter 23, “Of the Several Modes of Prosecution,” (Oxford: Clarendon Press 1769) 298-312.

¹⁹William Blackstone, Commentaries On the Laws of England, Book 4 (Oxford: Clarendon Press 1769) 299.

²⁰William Blackstone, Commentaries On the Laws of England, Book 4 (Oxford: Clarendon Press 1769) 305.

²¹E.g., Noah Webster defined “prosecution” in 1828 as “The institution or commencement and continuance of a criminal suit; the process of exhibiting formal charges against an offender before a legal tribunal, and pursuing them to final judgment: as by prosecutions of the crown or of the state by the attorney or attorney general. Prosecutions may be by presentment, information or indictment” [emphasis in the original]. Noah Webster, An American Dictionary of the English Language, Vol. II (New York: Converse 1828).

²²Pennsylvania v. Ritchie, 480 U.S. 39, 52, 107 S. Ct. 989, 999, 94 L. Ed. 2d 40 (1987); Cameron v. State, 943 So. 2d 938 (Fla. 4th DCA 2006) (Sixth Amendment right of defendant to confront witnesses against him or her is part of right to trial by jury when determining guilt and does not apply to sentencing stage). See also Rodgers v. State, 948 So. 2d 655 (Fla. 2006) (Cantero, J., concurring) (the confrontation clause does not apply to noncapital sentencing); State v. Harris, 2009 WL 1871919 (Tenn. Crim. App. 2009) (the confrontation clause of the U.S. Constitution does not apply to the evidence adduced during noncapital sentencing). A hybrid exception is jury-sentencing trials. See, e.g., State v. Rodriguez, 754 N.W.2d 672 (Minn. 2008) (the right of confrontation guaranteed by the Sixth Amendment applies in jury-sentencing trials).

²³See Young v. State, 33 So. 3d 151 (Fla. 4th DCA 2010). See also U.S. v. Cantellano, 430 F. 3d 1142, 1146 (Fla. 11th Cir. 2005) and cases cited therein; U.S. v. Mandhai, 140 Fed. Appx. 54, 55-56 (11th Cir. 2005).

²⁴Rodgers v. State, So. 2d 655, 663 (Fla. 2006) (“[A] defendant’s rights under the Confrontation Clause apply to the guilt phase, the penalty phase, and sentencing.”); Way v. State, 760 So. 2d 903 (Fla. 2000) (the confrontation clause applies to capital sentencing proceedings); Rodriguez v. State, 753 So. 2d 29, 43 (Fla. 2000) (“We start with the uncontroverted proposition that the Sixth Amendment right of confrontation applies to all three phases of the capital trial.”); Tompkins v. State, 502 So. 2d 415 (Fla. 1986) (right of confrontation protected by cross-examination is right that applies to capital sentencing process); Engle v. State, 438 So. 2d 803, 814 (Fla. 1983). Note that there has been at least one request for the Florida Supreme Court to recede from this holding: See Barnes v. State, 29 So. 3d 1010 (Fla. 2010) n. 16.

²⁵U.S. Const. amend. XIV.

²⁶Art. I, § 9, Fla. Const.

²⁷“No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” Magna Carta Art. 39. (Modern English translation from the original Latin by the British Library.)

²⁸Townsend v. Burke, 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948).

²⁹U.S. v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972).

³⁰See U.S. v. Lopez, 898 F. 2d 1505, 1512 (11th Cir. 1990).

³¹Roberts v. U.S., 445 U.S. 552, 100 S. Ct. 1358, 63 L. Ed. 2d 622 (1980).

³²See Adams v. State, 376 So. 2d 47, 55-57 (Fla. 1st DCA 1979).

³³Williams v. State of Oklahoma, 358 U.S. 576, 584, 79 S. Ct. 421, 3 L. Ed. 2d 516 (1959).

³⁴Specht v. Patterson, 386 U.S. 605, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967).

³⁵2 McCormick on Evid. § 245 (7th ed.).

³⁶§ 90.801(1)(c), Fla. Stat.

³⁷§ 90.801(2), Fla. Stat.

³⁸These exceptions are: (1) spontaneous statement; (2) excited utterance; (3) then-existing mental, emotional, or physical condition; (4) statements for purpose of medical diagnosis or treatment; (5) recorded recollection; (6) records of regularly conducted business activity; (7) absence of entry in records of regularly conducted activity; (8) public records and reports; (9) records of vital statistics; (10) absence of public record or entry; (11) records of religious organizations; (12) marriage, baptismal, and similar certificates; (13) family records; (14) records of documents affecting an interest in property; (15) statements in documents affecting an interest in property; (16) statements in ancient documents; (17) market reports, commercial publications; (18) admissions; (19) reputation concerning personal or family history; (20) reputation concerning boundaries or general history; (21) reputation as to character; (22) former testimony; (23) statement of child victim; and (24) statement of elderly person or disabled adult. § 90.803, Fla. Stat.

³⁹These exceptions are: (a) former testimony; (2) statement under belief of impending death; (3) statement against interest; (4) statement of personal or family history; (5) statement by deceased or ill declarant similar to one previously admitted; and (6) statement offered against a party that wrongfully caused the declarant’s unavailability. § 90.804(2), Fla. Stat.

⁴⁰Williams v. People of State of N.Y., 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949).

⁴¹See, for example, Mayes v. State, 604 A. 2d 839 (Del. 1992) and cases cited therein.

⁴²See Toole v. State, — So. 3d —, 2019 WL 761620 (Fla. 4th DCA 2019) (hearsay evidence may not be used to determine the amount of restitution when there is a proper objection by the defense to the hearsay evidence).

⁴³§ 921.002(1)(c) & (d), Fla. Stat.

⁴⁴§ 921.002(1)(f), Fla. Stat.

⁴⁵§ 921.001(4)(a), Fla. Stat.

⁴⁶§ 921.231(1)(a), Fla. Stat.

⁴⁷Fla. R. Crim. P. 3.170(a).

⁴⁸Fla. R. Crim. P. 3.720(b).

⁴⁹Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d177 (2004).

⁵⁰Peters v. State, 984 So. 2d 1227 (Fla. 2008); Russell v. State, 982 So. 2d 642 (Fla. 2008).

⁵¹Brill v. State, 159 Fla. 682, 32 So. 2d 607 (Fla. 1947).

⁵²See Berhardt v. State, 288 So. 2d 490 (Fla. 1974).

⁵³Delopa v. State, 251 So. 3d 934 (Fla. 4th DCA 2018).

⁵⁴§ 775.084(3)(a)-(c), Fla. Stat.

⁵⁵§ 775.084(3)(b), Fla. Stat.

⁵⁶Adams v. State, 376 So. 2d 47, 50 (Fla. 1st DCA 1979).

⁵⁷§ 921.141(1), Fla. Stat.

⁵⁸Blackwood v. State, 777 So. 2d 399 (Fla. 2000).

⁵⁹Bowles v. State, 804 So. 2d 1173, 1184 (Fla. 2001).

⁶⁰§ 921.1401(2), Fla. Stat.

⁶¹§ 921.1402(6), Fla. Stat.

⁶²See, e.g., Gregory Council v. State, 98 So. 3d 115, 117 (Fla. 1st DCA 2012) (admission of expert testimony), citing Barfield v. State, 880 So. 2d 768, 770 (Fla. 2d DCA 2004) (same).

⁶³§90.103(1), Fla. Stat.

⁶⁴§90.103(2), Fla. Stat. Florida courts have held that “criminal proceedings” includes sentencing. See Gonzalez v. State, 838 So. 2d 1242 (Fla. 1st DCA 2003) (mandatory sentencing hearing); Brown v. State, 589 So. 2d 987 (Fla. 2d DCA 1991) (right to counsel at sentencing).

⁶⁵§ 90.802, Fla. Stat.

⁶⁶McInerney v. State, 213 So. 3d 933 (Fla. 4th DCA 2017) (hearsay is admissible in non-capital sentencing hearings, absent a request for sentence enhancement).

⁶⁷Gorzynski v. State, 255 So. 3d 990 (Fla. 2d DCA 2018).

⁶⁸Fed. R. Evid. 1101(d)(3) (“These rules ... do not apply to ... sentencing”).

⁶⁹Mich. R. Evid. 1101(b)(3).

⁷⁰Minn. R. Evid. 1101(b)(3).

⁷¹N.C. R. Evid. 1101(b)(3).

⁷²Utah . Evid. 1101(b)(3).

⁷³§ 911.01(4)(c), W.S.A.