Rule of Evidence Don't Apply to Restitution Hearings

State v. Willis, Minn.Ct.App., 8/15/2016.  A jury convicted Mr. Willis of aggravated forgery, something to do with a quitclaim deed.  Fortunately, this case isn't about property law, but restitution. At the restitution hearing the trial court received in evidence, over objection, a letter from the victim's attorney stating that the victim had incurred expenses of two grand in legal fees to untangle the quitclaim business.  On appeal, the question is whether the rules of evidence apply to restitution hearings.

Now, just a few months back the supreme court said that the rules of evidence apply to Blakely bench trials.  State v. Sanchez-Sanchez.  The court of appeals, however, distinguishes this case by saying that an award of restitution is part of a criminal sentencing,   Evans v. State, 880 N.W.2d 357 (Minn. 2016), but it's not part of sentencing under Rule of Evidence 1101.  A Blakely trial is more like an adjudication of guilt phase of a criminal trial because, in part, "adjudicatory facts are determined." Just why a determination of an amount of restitution is not an "adjudicatory fact" isn't really explained.

Except that if such a determination is an "adjudicatory fact" then a restitution hearing, which is admittedly part of a criminal sentence, starts to look a lot like a Blakely hearing.  That, of course, requires a jury, which is the real elephant in the courtroom.