If someone was charged with 15 counts but was only indicted on 2, can the prosecutor introduce evidence at sentencing of charges that we not indicted?
<p>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? </p>

<blockquote>
  <p>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?</p>
</blockquote>

<p>In federal court, yes. This has been the case since <em>Williams v. New York</em>, 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 <em><a href="https://supreme.justia.com/cases/federal/us/519/148/case.pdf" rel="nofollow noreferrer">U.S. v. Watts</a></em>, 519 U.S. 148 (1997), the prosecutor can even introduce evidence at sentencing of charges upon which the person was acquitted by a jury. <em>See generally</em> <a href="https://fas.org/sgp/crs/misc/LSB10191.pdf" rel="nofollow noreferrer">here</a>. This remains good law although it is controversial both in academic writing and in political discussions and among many sitting federal judges.</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>From <a href="https://www.ussc.gov/sites/default/files/pdf/research-and-publications/research-projects-and-surveys/miscellaneous/201510_fed-sentencing-basics.pdf" rel="nofollow noreferrer">here</a>. The quote above cites the following authority:</p>

<blockquote>
  <p>FED. R. EVID. 1101(d)(3).</p>
  
  <p><em>Williams v. New York</em>, 337 U.S. 241 (1949).</p>
  
  <p>18 U.S.C. § 3661; <em>see also Pepper v. United States</em>, 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.’ <em>Williams v. New York</em>, 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).”).</p>
  
  <p>USSG §6A1.3(a).</p>
  
  <p>FED. R. CRIM. P. 32(i)(3)(B).</p>
  
  <p>USSG §6A1.3, comment.; <em>see also McMillan v. Pennsylvania</em>, 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).</p>
</blockquote>

<p><a href="https://www.law.cornell.edu/rules/fre/rule_1101" rel="nofollow noreferrer">Federal Rule of Evidence 1101</a> states (emphasis added):</p>

<blockquote>
  <p>Rule 1101. Applicability of the Rules</p>
  
  <p>(a) To Courts and Judges. <strong>These rules apply to proceedings before:</strong></p>
  
  <p>· <strong>United States district courts</strong>;</p>
  
  <p>· United States bankruptcy and magistrate judges;</p>
  
  <p>· United States courts of appeals;</p>
  
  <p>· the United States Court of Federal Claims; and</p>
  
  <p>· the district courts of Guam, the Virgin Islands, and the Northern
  Mariana Islands.</p>
  
  <p>(b) To Cases and Proceedings. <strong>These rules apply in:</strong></p>
  
  <p>· civil cases and proceedings, including bankruptcy, admiralty, and
  maritime cases;</p>
  
  <p>· <strong>criminal cases and proceedings</strong>; and</p>
  
  <p>· contempt proceedings, except those in which the court may act
  summarily.</p>
  
  <p>(c) Rules on Privilege. <strong>The rules on privilege apply to all stages of
  a case or proceeding.</strong></p>
  
  <p>(d) <strong>Exceptions. These rules — except for those on privilege — do not
  apply to the following:</strong></p>
  
  <p>(1) the court’s determination, under Rule 104(a), on a preliminary
  question of fact governing admissibility;</p>
  
  <p>(2) grand-jury proceedings; and</p>
  
  <p><strong>(3) miscellaneous proceedings such as:</strong></p>
  
  <p>· extradition or rendition;</p>
  
  <p>· issuing an arrest warrant, criminal summons, or search warrant;</p>
  
  <p>· a preliminary examination in a criminal case;</p>
  
  <p>· <strong>sentencing;</strong></p>
  
  <p>· granting or revoking probation or supervised release; and</p>
  
  <p>· considering whether to release on bail or otherwise.</p>
  
  <p>(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.</p>
</blockquote>

<p>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. </p>

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

<p>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 <em><a href="https://supreme.justia.com/cases/federal/us/530/466/case.pdf" rel="nofollow noreferrer">Apprendi v. New Jersey</a></em>, 530 U.S. 466 (2000).</p>

<p>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.</p>

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