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BENCH MEMORANDUM
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MATTER—Right of confrontation, due process, and use of hearsay at sentencing

AUTHOR—Hon. William H. Burgess, III
DATE—April 7, 2019
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This memorandum sets forth the law regarding the right of confrontation, due
process, and the use of hearsay at sentencing.
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1. Generally. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
2. The Role of the Judge at Sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
3. Confrontation Under the Sixth Amendment. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
4. Due Process.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
5. Effect of the Guidelines and the Criminal Punishment Code. . . . . . . . . . . . . . . . . . . . . . . . . 8
6. Use of Hearsay in Sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
7. Effect of the Florida Evidence Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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1. Generally.

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.

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.

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

2
See McMillan v. Pennsylvania, 477 U.S. 79, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986).
3
See U.S. v. Wise, 976 F. 2d 393, 397 (8th Cir. 1992).
4
Minimum 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.

Judge Burgess Bench Memorandum Re: Right of confrontation,

2 due process, and use of hearsay at sentencing, April 7, 2019
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.

2. The 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.

5
With the elimination of parole in Florida, determinations of dangerousness are the responsibility of the
judge at initial sentencing or at resentencing.
6
Williams v. People of State of N.Y., 337 U.S. 241, 246-247, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949).

Judge Burgess Bench Memorandum Re: Right of confrontation,

3 due process, and use of hearsay at sentencing, April 7, 2019
 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

3. 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

7
See Adams v. State, 376 So. 2d 47, 55 (Fla. 1st DCA 1979).
8
See Fla. R. Crim. P. 3.172(a) and 3.720(b).
9
Williams v. People of State of N.Y., 337 U.S. 241, 250, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949).
10
U.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.

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4 due process, and use of hearsay at sentencing, April 7, 2019
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
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.13

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.14

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.15

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.16
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

12
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d177 (2004).
13
U.S. v. Cantellano, 430 F. 3d 1142, 1145 (Fla. 11th Cir. 2005).
14
Mattox 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.”).
15
See Alden v. Maine, 527 U.S. 706, 715, 119 S. Ct. 2240, 144 L. Ed. 2d 636 (1999).
16
William Blackstone, Commentaries On the Laws of England, Book 4 (Oxford: Clarendon Press 1769)
286.

Judge Burgess Bench Memorandum Re: Right of confrontation,

5 due process, and use of hearsay at sentencing, April 7, 2019
meant by prosecution is found in his chapter on the modes of prosecution.17 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”18), presentment, or information.
“Prosecution,” as Blackstone used the term, referred to “instituting a criminal suit”19 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.20

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.21 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.22 An exception

17
William Blackstone, Commentaries On the Laws of England, Book 4, Chapter 23, “Of the Several Modes
of Prosecution,” (Oxford: Clarendon Press 1769) 298-312.
18
William Blackstone, Commentaries On the Laws of England, Book 4 (Oxford: Clarendon Press 1769)
299.
19
William Blackstone, Commentaries On the Laws of England, Book 4 (Oxford: Clarendon Press 1769)
305.
20
Noah Webster defined “prosecution” 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.” Noah Webster, An American Dictionary of the English Language, Vol.
II (New York: Converse 1828).
21
Pennsylvania 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).
22
See 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).

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6 due process, and use of hearsay at sentencing, April 7, 2019
in Florida is that the Florida Supreme Court has applied the confrontation clause to sentencing in
capital cases.23

4. 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.”24 Florida’s constitution
similarly provides that “ No person shall be deprived of life, liberty or property without due
process of law.”25 These clauses, which echo the promise of the 1215 Magna Carta of Great
Britain,26 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.27 It follows that a defendant may not be sentenced on the basis of
materially inaccurate information28 groundless inferences,29 or unfounded assumptions.30 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

23
Rodgers 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.
24
U.S. Const. amend. XIV.
25
Art. I, § 9, Fla. Const..
26
“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.)
27
Townsend v. Burke, 334 U.S. 736, 68 S. Ct. 1252, 92 L. Ed. 1690 (1948).
28
U.S. v. Tucker, 404 U.S. 443, 92 S. Ct. 589, 30 L. Ed. 2d 592 (1972).
29
See U.S. v. Lopez, 898 F. 2d 1505, 1512 (11th Cir. 1990).
30
Roberts v. U.S., 445 U.S. 552, 100 S. Ct. 1358, 63 L. Ed. 2d 622 (1980).

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7 due process, and use of hearsay at sentencing, April 7, 2019
minimum, or (2) enhance the possible punishment beyond the statutory maximum for the offense
for which the defendant was convicted.31 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.32 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.33

5. 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.

31
See Adams v. State, 376 So. 2d 47, 55-57 (Fla. 1st DCA 1979).
32
Williams v. State of Oklahoma, 358 U.S. 576, 584, 79 S. Ct. 421, 3 L. Ed. 2d 516 (1959).
33
Specht v. Patterson, 386 U.S. 605, 87 S. Ct. 1209, 18 L. Ed. 2d 326 (1967).

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8 due process, and use of hearsay at sentencing, April 7, 2019
 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.

6. Use of Hearsay in Sentencing.

One of the biggest problems in sentencing is defining the permissible use of hearsay. The
law as regards the use of hearsay at sentencing 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.34 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.35 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.36

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.37 This section also provides that departures below the lowest permissible
sentence established by the CPC be made only when “circumstances or factors” reasonably

34
Williams v. People of State of N.Y., 337 U.S. 241, 69 S. Ct. 1079, 93 L. Ed. 1337 (1949).
35
See, for example, Mayes v. State, 604 A. 2d 839 (Del. 1992) and cases cited therein.
36
See 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).
37
§ 921.002(1)(c) & (d), Fla. Stat.

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9 due process, and use of hearsay at sentencing, April 7, 2019
justify the mitigation of the sentence by a preponderance of the evidence.38 The same language is
found in section 921.001, pertaining to the former sentencing guidelines.39 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),
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.”40

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.41 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.42 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 Crawford43 does not apply in supervision

38
§ 921.002(1)(f), Fla. Stat.
39
§ 921.001(4)(a), Fla. Stat.
40
§ 921.231(1)(a), Fla. Stat.
41
Fla. R. Crim. P. 3.170(a).
42
Fla. R. Crim. P. 3.720(b).
43
Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d177 (2004).

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10 due process, and use of hearsay at sentencing, April 7, 2019
revocation proceedings.44 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.45

Trial courts have broad discretion to revoke supervision, but this discretion must be exercised in
accordance with the requirements of due process.46 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.47

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

44
Peters v. State, 984 So. 2d 1227 (Fla. 2008); Russell v. State, 982 So. 2d 642 (Fla. 2008).
45
Brill v. State, 159 Fla. 682, 32 So. 2d 607 (Fla. 1947).
46
See Berhardt v. State, 288 So. 2d 490 (Fla. 1974).
47
Delopa v. State, 251 So. 3d 934 (Fla. 4th DCA 2018).

Judge Burgess Bench Memorandum Re: Right of confrontation,

11 due process, and use of hearsay at sentencing, April 7, 2019
sentence is not necessary for the protection of the public.48 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.49

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.50

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.51 This rule applies to the defendant as well as to the State.52 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.53

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.54 In reviewing sentences for
modification under section 921.1402(6), Fla. Stat., for persons convicted of specified offenses

48
§ 775.084(3)(a)-(c), Fla. Stat.
49
§ 775.084(3)(b), Fla. Stat.
50
Adams v. State, 376 So. 2d 47, 50 (Fla. 1st DCA 1979).
51
§ 921.141(1), Fla. Stat.
52
Blackwood v. State, 777 So. 2d 399 (Fla. 2000).
53
Bowles v. State, 804 So. 2d 1173, 1184 (Fla. 2001).
54
§ 921.1401(2), Fla. Stat.

Judge Burgess Bench Memorandum Re: Right of confrontation,

12 due process, and use of hearsay at sentencing, April 7, 2019
committed while they were juveniles, the sentencing court must consider a range of information55
that unavoidably call for a measure of hearsay.

7. 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.56

The effect of the FEC on the use of hearsay evidence at sentencing 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”57 and that “[t]his act shall apply to criminal proceedings
related to crimes committed after the effective date of this code ... ”58 Section 90.802, Fla. Stat.,
flatly states, “Except as provided by statute, hearsay evidence is inadmissible.”59 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,60 and the Second District has held more recently that hearsay is
inadmissible at sentencing absent a statutory exception.61

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

55
§ 921.1402(6), Fla. Stat.
56
See, 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).
57
§90.103(1), Fla. Stat.
58
§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).
59
§ 90.802, Fla. Stat.
60
McInerney v. State, 213 So. 3d 933 (Fla. 4th DCA 2017) (hearsay is admissible in non-capital sentencing
hearings, absent a request for sentence enhancement).
61
Gorzynski v. State, 255 So. 3d 990 (Fla. 2d DCA 2018).

Judge Burgess Bench Memorandum Re: Right of confrontation,

13 due process, and use of hearsay at sentencing, April 7, 2019
not preempt longstanding practice and other applicable law. Another way would be for the
legislature to amend the FEC so that, similar to the federal evidence code, it does not apply to
sentencing.62 Until such reconciliation occurs, the law on the use of hearsay at sentencing will
remain uncertain in some aspects.

62
Fed. R. Evid. 1101(d)(3) (“These rules ... do not apply to ... sentencing”).

Judge Burgess Bench Memorandum Re: Right of confrontation,

14 due process, and use of hearsay at sentencing, April 7, 2019