I just have a question about information being presented that a defendant was not indicted on. If someone was charged with 15 counts of a crime but was only indicted on 2 counts, can the prosecutor introduce evidence at sentencing of charges that the person was not indicted on? And if so isn't that denying the defendant his or her due process because that person was not indicted on those charges?

2 Answers 2


If someone was charged with 15 counts of a crime but was only indicted on 2 counts, can the prosecutor introduce evidence at sentencing of charges that the person was not indicted on?

In federal court, yes. This has been the case since Williams v. New York, 337 U.S. 241 (1949) which held that evidence such as counts and conduct upon which the defendant was not charged or indicted may still be considered in a sentencing hearing. Since U.S. v. Watts, 519 U.S. 148 (1997), the prosecutor can even introduce evidence at sentencing of charges upon which the person was acquitted by a jury. See generally here. This remains good law although it is controversial both in academic writing and in political discussions and among many sitting federal judges.

Neither the Federal Rules of Evidence nor constitutional provisions related to evidentiary matters (e.g., the Confrontation Clause of the Sixth Amendment) apply at sentencing. Therefore, the court may consider hearsay and other types of information that would not be admissible during a trial. However, the [U.S. Sentencing] Commission has stated that information considered by a court at sentencing must have “sufficient indicia of reliability to support its probable accuracy.” Under Federal Rule of Criminal Procedure 32, the court “must — for any disputed portion of the presentence report or other controverted matter — rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing.” In resolving factual disputes, the court ordinarily applies the preponderance of the evidence standard.

From here. The quote above cites the following authority:

FED. R. EVID. 1101(d)(3).

Williams v. New York, 337 U.S. 241 (1949).

18 U.S.C. § 3661; see also Pepper v. United States, 562 U.S. 476, 480 (2011) (“This Court has long recognized that sentencing judges ‘exercise a wide discretion’ in the types of evidence they may consider when imposing sentence and that ‘[h]ighly relevant — if not essential — to [the] selection of an appropriate sentence is the possession of the fullest information possible concerning the defendant's life and characteristics.’ Williams v. New York, 337 U.S. 241, 246– 247 (1949). Congress codified this principle at 18 U.S.C. § 3661, which provides that ‘[n]o limitation shall be placed on the information’ a sentencing court may consider ‘concerning the [defendant's] background, character, and conduct,’ and at § 3553(a), which sets forth certain factors that sentencing courts must consider, including ‘the history and characteristics of the defendant,’ § 3553(a)(1).”).

USSG §6A1.3(a).

FED. R. CRIM. P. 32(i)(3)(B).

USSG §6A1.3, comment.; see also McMillan v. Pennsylvania, 477 U.S. 79, 91-92 (1986) (holding that due process does not require sentencing factors to be proved by more than a preponderance of the evidence).

Federal Rule of Evidence 1101 states (emphasis added):

Rule 1101. Applicability of the Rules

(a) To Courts and Judges. These rules apply to proceedings before:

· United States district courts;

· United States bankruptcy and magistrate judges;

· United States courts of appeals;

· the United States Court of Federal Claims; and

· the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands.

(b) To Cases and Proceedings. These rules apply in:

· civil cases and proceedings, including bankruptcy, admiralty, and maritime cases;

· criminal cases and proceedings; and

· contempt proceedings, except those in which the court may act summarily.

(c) Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding.

(d) Exceptions. These rules — except for those on privilege — do not apply to the following:

(1) the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility;

(2) grand-jury proceedings; and

(3) miscellaneous proceedings such as:

· extradition or rendition;

· issuing an arrest warrant, criminal summons, or search warrant;

· a preliminary examination in a criminal case;

· sentencing;

· granting or revoking probation or supervised release; and

· considering whether to release on bail or otherwise.

(e) Other Statutes and Rules. A federal statute or a rule prescribed by the Supreme Court may provide for admitting or excluding evidence independently from these rules.

Given the immense personal importance of a sentencing hearing which can exercise discretion over a range of many decades of possible prison time, and which is frequently the only meaningful opportunity for a person who is easily proven guilty to distinguish himself or herself from other defendants, it is really very stunning and counterintuitive that this is the case.

And if so isn't that denying the defendant his or her due process because that person was not indicted on those charges?

Under current U.S. Constitutional law, the maximum sentence that can be imposed must be based upon convictions by a jury or judge based upon charges upon which indictments were brought, which were proved beyond a reasonable doubt based upon admissible evidence. The leading case in support of this proposition is Apprendi v. New Jersey, 530 U.S. 466 (2000).

But, at sentencing, the judge's exercise of discretion up to the maximum sentence established at trial may be made based upon a preponderance of the evidence and that evidence is not subject to the same procedural safeguards.

  • The question asked about counts that were not found to be indictable, not those where there was an acquittal. I'm not disputing that case comes into play after an acquittal, but when counts were dropped, the court rule I mentioned controls it.
    – Putvi
    Commented May 15, 2019 at 16:42
  • Also, why would the judge ask if the defense would like to object if it is always allowed? He or she wouldn't, so this does not apply.
    – Putvi
    Commented May 15, 2019 at 21:54
  • @Putvi The federal rules of evidence specifically state that they do not apply to sentencing hearings. The only objections allowed in sentencing hearings are for privileged information and that the evidence lacks “sufficient indicia of reliability to support its probable accuracy.” A judge may respond by either ruling on the objection on the merits or by asserting that the judge isn't considering the disputed evidence in any case rendering the objection moot, as noted in my answer. (A defense attorney may also preserve an objection seeking to change the law for appellate review by objecting).
    – ohwilleke
    Commented May 15, 2019 at 21:59
  • @Putvi One can also imagine other objections that don't arise from the rules of evidence. Perhaps the prosecutor is jumping the gun and starting to present evidence before the incarcerated defendant is the courtroom (which isn't allowed). Perhaps the prosecutor is reading from a sentencing report for a co-defendant instead of the person whose sentence is being considered. Perhaps the manner of an evidentiary presentation is so abusive and insulting of either the defendant or his counsel that the defense wants to shut it down as contemptuous. The FRE don't apply merely because one can object.
    – ohwilleke
    Commented May 15, 2019 at 22:22

It really depends on how the information is used and what the information is. It is impossible to say without knowing the exact circumstances, but I will give you an overview.

Generally, if you want to use it to only cast the person in a certain light, it not permitted.

Federal Rule 404 says:

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice. https://www.law.cornell.edu/rules/fre/rule_404

In some cases, the other acts would show that something was planned or intentional and is admitted. So, if the information is needed to show something, it is allowed, but it is not allowed solely to cast a person in a certain way.

  • Was the sentence high?
    – Putvi
    Commented May 14, 2019 at 18:12
  • Was it a serious crime though or the person did whatever it was a lot?
    – Putvi
    Commented May 14, 2019 at 18:53
  • Sometimes one serious crime is all it takes tbh. Not that I wish bad on the person.
    – Putvi
    Commented May 14, 2019 at 19:30
  • 2
    The federal rules of evidence do not apply in sentencing hearings in federal court. See FED. R. EVID. 1101(d)(3).
    – ohwilleke
    Commented May 15, 2019 at 1:06

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