Gardiner Hearings: Evidence at Sentencing Hearings
Sentencing is part of the trial process. It is no surprise then that certain procedural rights that exist for the accused at earlier parts of the trial, exist at the sentencing phase: the right to counsel, the right to call evidence and cross-examine prosecution witnesses, the right to give evidence him/herself and to address the court. At sentencing, a court is not bound by the same strict rules of evidence that guide the process of determining guilt or innocence. Flexibility is key. The judge traditionally has had wide latitude as to the sources and types of evidence upon which to base the sentence. For instance, hearsay evidence may be accepted where it is found to be credible and trustworthy. When an accused enters an early guilty plea there will have been no trial and thus no findings of fact by the court. It is not unusual in such situations for counsel to provide the court with the evidence for sentencing through informal oral submissio...