Tuesday, May 28, 2013


The following question was asked by a reader of the blog:

I know there are some differences between the sentencing and the trial, but what should we know for the MBE?


There are some differences to keep in mind certainly, along with some similarities. As during trial, defendant has a right to effective counsel. An important difference here is that a defendant does not have a 6th Amendment right to confront adverse witnesses during sentencing which means that there is no right to cross-examination, and the sentence may even be based on hearsay. Note, however, that a defendant in a death penalty case must have more opportunity for confrontation than is otherwise required in sentencing proceedings for non-capital cases.

You should also note that if a judge imposes a greater sentence on appeal than was imposed during the initial trial, the judge will, generally, need to set forth in the record the reasons for the harsher sentence. This ensures that defendant has not been penalized for exercises his right to appeal.

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