Movie mogul and convicted felon Harvey Weinstein, during his trial for sexual assault.

More than two years after the first allegations against him emerged, Harvey Weinstein was convicted of committing a criminal sex act in the first degree involving one woman, H., in 2006 and rape in the third degree involving another, M., in 2013. He was acquitted of the two more serious charges of predatory sexual assault involving at least two women (H. and S., and M. and S, respectively) and one count of first-degree rape (M.). (The conviction of third-degree rape was as a lesser included offense of the first degree rape charge of which he was acquitted). More than 70 women have accused Weinstein of sexual misconduct. Some testified at the trial; others were interviewed or gave statements that were included in the prosecutor's sentencing memorandum. According to the press accounts of the sentencing the state's attorney's sentencing memorandum detailed additional accounts of Weinstein victims—three dozen uncharged incidents and accusations.

In an unusual move for someone still facing criminal charges, Weinstein spoke at his sentencing hearing, at the conclusion of which Judge James Burke sentenced Weinstein to 20 years on the criminal sex act in the first degree count and three years, to run consecutively, on the rape in the third degree count. The Judge remarked: "This is a first conviction, but it is not a first offense." We know this because a reporter was able to take down that comment by the court. But we don't have access to the sentencing transcripts to know exactly what transpired. Nor do we know how much of the information at sentencing was new to the court and how much had already been introduced during the court of the trial. Therefore, at present we have no way to know whether the trial court imposed the 23 year sentence based on the testimony of H., M., and S; the trial testimony of the uncharged misconduct victims; Weinstein's own misguided statement; the sentencing memo by the prosecutor, information outside the record that was reliable and not materially false; or other victim impact evidence. Consequently, we cannot assess whether Weinstein's due process rights were violated.

A sentencing judge has very broad discretion in imposing any sentence within the statutory limits. In exercising that discretion he generally is permitted to consider matters that would not be admissible at trial—that is, evidence that would be inadmissible for the purpose of determining guilt. Due process does not require information considered by the trial judge prior to sentencing to meet the same high procedural standard as evidence. Sworn and unsworn testimony relative to the circumstances and the defendant's life is permissible.

The trial court's discretion is not, however, completely unfettered. As a matter of due process, information may be considered so long as if it has some minimal indicium of reliability. As defined, reliability means that the judge has a reasonable, persuasive basis for relying on the information. There is, however, no easy formula or threshold inquiry for determining what information considered by a sentencing judge is sufficiently reliable to meet the requirements of due process.

A reviewing court looks to whether a sentencing judge has relied on demonstrably false information and whether the sentencing process created a significant possibility that misinformation "infected the decision." An appellate court adheres to the principal that if the sentencing judge had a reasonable, persuasive basis for relying on the information that he relied upon, it will generally not interfere with his discretion. It's a fairly low bar: only when the information was materially false or unreliable and the trial court substantially relied on the information in determining the sentence will appellate courts intervene.

Courts have even permissibly relied on a defendant's failure to deny the allegations as an important indicium of reliability. When there are still outstanding charges or the defendant expects to appeal the subject conviction, hoping for a new trial, that reliance is suspect. Nevertheless, courts have been loath to require more so as not to chill judges from articulating their reasons, nor to prevent correction when the sentencing judge relied on information that was truly unreliable, inaccurate or patently wrong. We repeat-low bar.

In 1986, the Connecticut Supreme Court in State v. Huey, 199 Conn. 121 (1986), articulated all the aforementioned principles of law. The court has repeated these standards many times, embracing the vagaries and even refusing to overrule or limit Huey. Then in April 2018, the court granted certification in In re Angel M on the following issue: "Should the Supreme Court overrule State v. Huey, 199 Conn. 121, 505 A.2d 1242 (1986), because consideration of a defendant's refusal to admit guilt for any purpose at sentencing is a violation of the defendant's right against self-incrimination?"

Briefs were filed between November, 2018 and January, 2019 and the case was argued in September, 2019. A decision on the certified question may not answer all the parameters outlined in Huey and its progeny, but trials arising out of the #MeToo movement will continue and it would be beneficial to have some of the due process concerns and considerations revisited before too many convictions are put in jeopardy. Whether New York will look to Connecticut's Angel M. for guidance when Weinstein's case gets appealed is anyone's guess depending upon its outcome, but a fresh look at sentencing considerations and what due process entails will be welcome for sure.