Virginia Supreme Court rejects reliance on penile plethysmograph in presentence report
Regular readers know from prior posts here and here, the use of penile plethysmography (PPG) has generated a number of notable legal disputes. And, thanks to this post at AL&P, I see that the Virginia Supreme Court last week issued this interesting ruling in Billips v. Virginia concerning “the admissibility of opinion evidence based upon plethysmograph testing at a sentencing proceeding.” (We all had to know this issue would come up in Virginia given the state’s legendary slogan.)
The two opinions in Billips have various interesting aspects, and this section of the concurring opinion highlights that Billips majority perhaps can be read to support an argument for defendant’s receiving full trial protections at sentencings:
The majority’s holding is particularly troublesome to me because, in this case, we are concerned only with the admissibility of evidence contained in a pre-sentence report prepared in accordance with the provisions of Code §§ 19.2-299 and –300. Such a pre-sentence report is considered only by a trial court in its sentencing decision. The majority applies the evidentiary rule set forth in Spencer even though there is a relaxed standard governing admissibility of evidence contained in a presentence report.
Some related prior posts: