Mont. Code Ann. » TITLE 46. CRIMINAL PROCEDURE · CHAPTER 18. SENTENCE AND JUDGMENT · Part 3. Death Penalty
Montana Code Annotated

Mont. Code Ann. § 46-18-302 (2026)

Evidence That May Be Received

✓ current as of May 2026
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  1. MCA Contents
  2. TITLE 46
  3. CHAPTER 18
  4. Part 3
  5. 46-18-302 Evidence that may be received

TITLE 46. CRIMINAL PROCEDURE

CHAPTER 18. SENTENCE AND JUDGMENT

Part 3. Death Penalty

Evidence That May Be Received

46-18-302. Evidence that may be received. (1) (a) Subject to subsection (1)(b), in the sentencing hearing, evidence may be presented as to any matter the court considers relevant to the sentence, including but not limited to:

(i) the nature and circumstances of the crime;

(ii) the defendant's character, background, history, and mental and physical condition;

(iii) the harm caused to the victim and the victim's family as a result of the offense; and

(iv) any other facts in aggravation or mitigation of the penalty.

(b) Evidence of an aggravating circumstance may not be admitted or considered unless the defendant pleaded guilty to the offense and admitted the aggravating circumstance or the trier of fact found beyond a reasonable doubt that the aggravating circumstance existed.

(2) Any evidence that the court considers to have probative force may be received regardless of its admissibility under the rules governing admission of evidence at criminal trials. Evidence admitted at the trial relating to aggravating or mitigating circumstances must be considered without reintroducing it at the sentencing proceeding. The state and the defendant or the defendant's counsel must be permitted to present argument for or against sentence of death.

History: En. 95-2206.7 by Sec. 2, Ch. 338, L. 1977; R.C.M. 1947, 95-2206.7; amd. Sec. 21, Ch. 125, L. 1995; amd. Sec. 2, Ch. 154, L. 2003.

Notes of Decisions
Cited in 15 cases (1 in the last 5 years), 1979–2025 · leading case: Coleman v. State, 633 P.2d 624 (Mont. 1981).
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Coleman v. State, 633 P.2d 624 (Mont. 1981). · cites it 20× “Section 46-18-302, MCA. In my dissent in Coleman II, I emphasized that the findings and conclusions used as the foundation for the death sentence, are barren of any reference to Coleman's particularized background.”
State v. Lester Kills on Top, 787 P.2d 336 (Mont. 1990). · cites it 22× “Section 46-18-302, MCA, provides in pertinent part as follows: In the sentencing hearing, evidence may be presented as to any matter the court considers relevant to the sentence, including but not limited to the nature and circumstances of the crime, the defendant's character,…”
State v. Smith, 705 P.2d 1087 (Mont. 1985). · cites it 12× ““In the sentencing hearing, evidence may be presented as to any *475 matter the court considers relevant to the sentence, including but not limited to the nature and circumstances of the crime, the defendant’s character, background, history, and mental and physical condition,…”
State v. Keith, 754 P.2d 474 (Mont. 1988). · cites it 12× “Section 46-18-302, MCA. It would be an injustice to prohibit the District Court from considering the fact that Keith plead guilty to deliberate homicide, when deciding whether capital punishment was appropriate for the aggravated kidnapping which resulted in the death of the…”
State v. Coleman, 605 P.2d 1000 (Mont. 1979). · cites it 5× “7 now section 46-18-302 *1018 MCA, which states in pertinent part: "The state and the defendant or his counsel shall be permitted to present argument for or against sentence of death.”
State v. D.B.S., 700 P.2d 630 (Mont. 1985). · cites it 6× “Section 46-18-302, MCA, authorizes the sentencing judge to consider the widest possible scope of inquiry when determining the sentence to be imposed.”
State v. Dawson, 761 P.2d 352 (Mont. 1988). · cites it 4× “Section 46-18-302, MCA. The above finding could express absence of a mitigating factor.”
Dawson v. State, 2000 MT 219 (Mont. 2000). · cites it 3× “¶129 Section 46-18-302, MCA (1985), provides that in the sentencing hearing in a case where the death penalty may be imposed, “[e]vidence admitted at the trial relating to such aggravating or mitigating circumstances shall be considered without reintroducing it at the sentencing…”
State v. Klippenstein, 778 P.2d 892 (Mont. 1989). · cites it 6× “The comments of the District Court indicated only that the defendant had been treated leniently insofar as the charges were concerned. In imposing sentence, the sentencing court may consider any relevant evidence relating to the nature and circumstances of the crime, the…”
Olsen v. State, 67 P.3d 536 (Wyo. 2003). “1997); Mont.Code Ann. § 46-18-302 (1995); N.J. Stat.”
State v. Smith, 863 P.2d 1000 (Mont. 1993). “I believe it is clear that consideration of aggravating and mitigating circumstances as set forth in §§ 46-18-302, -303, and -304, MCA, can only logically and properly relate to circumstances that occurred prior to or as a part of the res gestae of the crimes for which…”
State v. DBS, 700 P.2d 630 (Mont. 1985). · cites it 6× “Section 46-18-302, MCA, authorizes the sentencing judge to consider the widest possible scope of inquiry when determining the sentence to be imposed.”
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