“Speculation Is Not a Fact” – The Montana Supreme Court’s Clarification of Due-Process Limits on Victim-Impact Statements in State v. C. Jacob

I. Introduction

On 24 June 2025, the Supreme Court of Montana delivered State v. Cole Michael Jacob, 2025 MT 133. The decision addresses two discrete but recurrent questions in criminal practice:

1. When does a victim-impact statement infringe a defendant’s constitutional right to due process at sentencing?
2. How, and when, must a defendant preserve for appeal a claim that a previous plea agreement should have been honored?

The appellant, Cole Michael Jacob, was convicted of felony indecent exposure to a minor. During sentencing, the State read an emotionally charged statement from the victim’s father. Jacob contended that the statement was sprung on him without notice, contained inflammatory speculation, and deprived him of an opportunity to rebut alleged “new material facts.” He further argued on appeal that he should have received the more lenient sentence contained in an earlier plea agreement that he had rejected, asserting that his rejection was the product of mental instability.

II. Summary of the Judgment

Justice Shea, writing for a unanimous Court, affirmed the District Court’s sentence of 15 years (with sex-offender treatment as a parole prerequisite) and rejected both of Jacob’s claims:

• Issue 1 – Due Process: No violation occurred. The father’s statement comprised opinions and speculation, not verifiable “facts.” Because Jacob did not allege that any factual information was false, Bauer and §46-18-115(4)(c), MCA, were not triggered.
• Issue 2 – Plea Agreement: The argument was unpreserved. Jacob never presented the District Court with the contention that his mental state rendered his earlier rejection involuntary; therefore, the claim could not be raised for the first time on appeal.

III. Detailed Analysis

A. Precedents Cited and Their Influence

1. Bauer v. State, 1999 MT 185 (Due process prohibits sentences based on “misinformation” and guarantees a chance to rebut new, material facts.) – Provided the general framework but required an allegation of falsity.
2. State v. Mainwaring, 2007 MT 14 (¶16) – Held that when a defendant does not dispute the truth of the information, due process is not implicated.
3. Goguen v. NYP Holdings, Inc., 2024 MT 47 – Offered a contemporary articulation of the fact–opinion dichotomy (“facts are capable of being proven false”). The Jacob Court imported that civil-libel concept into the sentencing context.
4. State v. Boucher, 2002 MT 114 – Quoted for the “voluntary, knowing, and intelligent” plea standard, but ultimately distinguished.
5. State v. Trujillo, 2020 MT 128 – Reaffirmed the preservation rule: appellate courts generally do not entertain issues first raised on appeal.

B. The Court’s Legal Reasoning

1. Victim-Impact Statement and Due Process

• Constitutional backdrop: Fourteenth Amendment & Article II §17 of the Montana Constitution prevent sentencing based on materially false information.
• Statutory overlay: §46-18-115(4)(c), MCA, codifies that principle, mandating an opportunity to respond if “new material facts” emerge at sentencing.
• Key analytic step – Fact vs. Opinion: By cross-referencing Goguen, the Court held that speculative questions (“Would he have kidnapped her?”) are not facts because they are not “capable of being proven false.” Therefore, they do not trigger the due-process right to rebut.
• No allegation of falsity: Jacob never asserted that any factual assertion (e.g., the child’s anxiety about going to school) was untrue. Accordingly, the Bauer/Mainwaring doctrine did not authorize a new sentencing.

2. Preservation of Plea-Agreement Argument

• Factual posture: Jacob sought leniency at sentencing by referencing the earlier January plea offer, but he did not contend that constitutional infirmity required imposition of that sentence.
• Appellate posture: Because Jacob expressly declined to invoke plain-error review and could not point to an on-the-record objection, Trujillo barred consideration.

C. Practical and Prospective Impact

1. Sentencing Practice: Courts now have clear authority to admit victim statements containing emotional speculation, so long as they do not purport to add new verifiable facts and the sentencing judge treats them as opinion rather than evidence.
2. Defense Strategy: Counsel must quickly object and specifically allege falsity if any element of a victim-impact presentation is factually inaccurate; otherwise, due-process arguments will fail.
3. Legislative Clarity: The case harmonizes §46-18-115 with modern defamation jurisprudence on “fact vs. opinion,” providing a uniform analytical tool across civil and criminal contexts.
4. Plea Negotiations: The decision reinforces that unpreserved claims about the voluntariness of plea decisions are unlikely to survive on appeal absent plain-error invocation.
5. Victim Advocacy: Victims and prosecutors gain latitude to express emotional harm, assuaging concerns that raw speculation will automatically invalidate sentencing.

IV. Complex Concepts Simplified

• Alford Plea: A plea in which a defendant maintains innocence but acknowledges that the State has enough evidence for a conviction. The court treats it as a guilty plea for sentencing.
• Persistent Felony Offender (PFO): A status enhancing sentencing ranges for repeat offenders.
• Victim-Impact Statement: Testimony or a written statement from a victim or their family describing the physical, emotional, or financial impact of the crime.
• Due Process at Sentencing: The constitutional guarantee that a defendant will be sentenced on accurate, reliable information and allowed to rebut new, material, factual assertions.
• Plain-Error Review: An appellate safety-valve that allows review of unpreserved claims affecting fundamental rights. Jacob declined to use it, so ordinary preservation rules applied.
• Fact vs. Opinion: Facts are objectively verifiable; opinions, predictions, and hypothetical questions are not. Only false factual statements raise due-process concerns.

V. Conclusion

State v. C. Jacob distills a critical proposition: emotional speculation in a victim-impact statement, untethered to verifiable fact, does not violate a defendant’s due-process rights, and therefore does not require advance disclosure or rebuttal time. By importing the “capable of being proven false” test from defamation law, the Court furnished a bright-line rule for Montana trial courts. Simultaneously, it re-emphasized the indispensability of issue preservation: arguments not raised below—particularly those attacking the voluntariness of plea negotiations—will not be heard on appeal absent a plain-error request.

Going forward, defense counsel must be vigilant in identifying and challenging inaccuracies, while prosecutors and victims may freely articulate emotional and speculative harms, provided they do not cross into demonstrably false factual territory. The ruling thus recalibrates the equilibrium between victims’ expressive rights and defendants’ due-process protections at sentencing—a precedent likely to resonate in Montana courts and beyond.