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Evidence at Restitution Hearings

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A common part of sentencing is restitution – which is supposed to repay any victim the out of pocket losses they sustained as a result of the crime. As you can probably imagine, restitution requests can lead to a lot of issues, particularly when the victim gets a bit greedy. In such an instance, the defendant has a right to a restitution hearing, in which the Court would decide the amount after looking at both (1) the proven out of pocket losses and (2) the defendant’s ability to pay.

Key to that analysis is whether the victim and/or state can prove the out-of-pocket losses sustained. In order to do so, the victim will provide receipts, invoices, and other documentation showing the losses sustained, and then often will testify to verify the same. When the documentation backs up the claim and the requested amount seems reasonable, often the restitution hearing is waived. But, when the the requested amount is outlandish and the proof is lacking, that’s when the hearing becomes contested.

During a contested hearing, the typical rules of evidence apply – which was just determined by the Minnesota Supreme Court in a recent decision. One of the last rules of evidence details when the rules apply. There is an exclusion to the application of the rules for sentencing hearings. The State attempted to argue that the term ‘sentencing’ would include a restitution hearing. The Supreme Court disagreed, holding that silence as to particular hearings in the rule is meaningful and, therefore, the fact that restitution hearings – which are separate and distinct from a sentencing hearing – must abide by the rules of evidence because it is not explicitly listed in the exclusion.

This means that at the contested hearing, the victim and/or State better have proper proof to support those outlandish requests. And if they don’t, the rules of evidence can become an effective sword for the defense in fighting off the bogus claims by keeping out hearsay and undocumented claims. A successful restitution hearing can make a world of difference for a defendant. Knowing the rules and how they factor into the hearing is critical to this success.



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