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77 Iowa L. Rev. 1803 (1991-1992)
Due Process Comes Due: An Argument for the Clear and Convincing Evidentiary Standard in Sentencing Hearings

handle is hein.journals/ilr77 and id is 1869 raw text is: Due Process Comes Due:
An Argument for the Clear and
Convincing Evidentiary Standard in
Sentencing Hearings
Scott M. Brennan*
Throughout the history of the United States, judges have interpreted
the Due Process Clause of the Fourteenth Amendment1 to require that the
government meet a high burden of proof2 in criminal cases.3 Notwithstand-
ing this, the United States Supreme Court did not hold due process
protections applicable in sentencing proceedings until it considered
Townsend v. Burke4 in 1948. In Townsend, the Court held a judge's use of
potentially inaccurate information at a sentencing hearing in order to
enhance a defendant's sentence violated the defendant's due process
rights.5 Since Townsend, many defendants have raised due process defenses
in the context of sentencing hearings; however, such defenses have rarely
been successful.6
*Laiv Student, University of Iowa.
1. The Due Process Clause mandates:
All persons born or naturalized in the United States and subject to the jurisdiction
thereof, are citizens of the United States and of the State wherein they reside. No
State shall make or enforce any law which shall abridge the privileges or immunities
of citizens of the United States; nor shall any State deprive any person of life, liberty,
or property, without due process of law; nor deny to any person within its jurisdiction
the equal protection of the laws.
U.S. Const. amend. XIV, § 1.
2. Standard of proof is defined as [tihe burden of proof required in a particular type of
case. Black's Law Dictionary 1405 (6th ed. 1990).
3. In re Winship, 397 U.S. 358, 361 (1969) (citing Charles T. McCormick, Evidence
§ 321, at 681-82 (1st ed. 1954)). The Winship Court expressly held that the Due Process
Clause protects the accused against conviction except upon proof beyond a reasonable doubt
of every fact necessary to constitute the crime with which he is charged. Winship, 397 U.S. at
364. See also 9 James Wigmore, Evidence § 2497 (3d ed. 1940); Black's Law Dictionary, supra
note 2, at 1405 (stating that the standard of proof in a criminal case is beyond a reasonable
4. 334 U.S. 736 (1948).
5. Id. at 739-40.
6. United States v. Murphy, 899 F.2d 714, 716-17 (8th Cir. 1990) (holding that due
process does not require any specific standard of proof for a factual determination at a
sentencing hearing); United States v. Gooden, 892 F.2d 725, 728 (8th Cir. 1989) (holding due
process satisfied where the district court used the preponderance of the evidence standard);
United States v. McDowell, 888 F.2d 285, 291 (3d Cir. 1989) (holding no violation of due
process where the preponderance of the evidence standard is used to increase the sentence);
United States v. Lee, 818 F.2d 1052, 1055 (2d Cir. 1987) (holding no violation of due process
exists where evidence considered in a sentencing hearing was not established by clear and
convincing evidence or beyond a reasonable doubt).


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