top of page
  • Joseph A. Del Russo, JD

Professor Del Russo Reacts: Acquitted charge as a possible sentence enhancement.

Updated: Jan 6, 2022

STATE v. MELVIN, WL 4314078, DECIDED: September 23, 2021.

In Melvin the NJ Supreme Court court prohibits the State from using an acquitted charge as a possible sentence enhancement using the lesser “preponderance of the evidence” standard (that is the standard of proof for sentencing enhancement findings— i.e. using a gun in a felony = more jail time). It could be argued that it opens a can of worms in that we do allow a jury to to acquit someone and then sue them civilly for the same offense (see O.J. Simpson for one). Similarly in DCP&P (child protection) litigation, technically you can be found “not guilty” in a criminal trial of child abuse, and then on a ‘preponderance’ standard you can be found responsible for child abuse in the Family Court. I suspect that because this process is all wrapped up in the criminal law’s procedures that follow convictions for related, non-enhancement offenses, this will not have much impact beyond criminal law sentencing. but it’s philosophy appears procedurally agnostic. It also does not implicate “whole person” sentencing, as far as I can tell. Or does it?


“Our Constitution's guarantee of the right to a criminal trial by jury is “inviolate.” N.J. Const. art. I, ¶ 9. In order to protect that right, we cannot allow the finality of a jury's not-guilty verdict to be put into question. To permit the re-litigation of facts in a criminal case under the lower preponderance of the evidence standard would render the jury's role in the criminal justice process null and would be fundamentally unfair. In order to protect the integrity of our Constitution's right to a criminal trial by jury, we simply cannot allow a jury's verdict to be ignored through judicial fact- finding at sentencing. Such a practice defies the principles of due process and fundamental fairness.”

25 views0 comments


bottom of page