What is the purpose of the pre-sentence investigation report (PSIR) in criminal cases?
In most criminal cases, guilty pleas are rapid and rote, and do not provide much information to the judge about the criminal defendant, his merits or his shortcomings. Perhaps because of this, most jurisdictions authorize an adjournment between plea or trial and sentencing for court officers (usually representatives of the probation department) to conduct a presentence investigation of the defendant and report to the judge and the parties. Judges use the presentence investigation report (“PSIR”) to arrive at an appropriate sentence, and the correctional authorities rely upon it to determine the defendant’s security classification and institutional placement. If you or a loved one is facing sentencing on criminal charges, here is some important information you need to know about this critical stage of the sentencing process:
What the report covers
The preparation of the PSIR does not involve much investigation, other than interviewing the prosecutor and the defendant and gathering records. Presentence investigators usually do not canvass the neighborhood to ascertain the defendant’s reputation and good or bad deeds. The PSIR will cover the following areas:
Waiving the PSIR
In most misdemeanor cases, the parties will have an agreement or at least a relatively certain expectation regarding the sentence, and there is only one institution in which to serve custodial sentences (the county jail) so a presentence report serves little purpose and may not be required. With a conviction on a felony criminal charge, however, a presentence investigation is usually mandatory, but the applicable rule or statute might leave some room for the parties and trial judge to waive it.
The defendant should waive (i.e., bypass) a presentence investigation and report when the judge or prosecutor has guaranteed a favorable sentence. When the judge can sentence-bargain, a PSIR may provide the judge an out from a favorable promise. When the judge does not participate in bargaining and the prosecutor can make only non-binding recommendations, the trial judge likely will follow that recommendation, reasoning that the prosecutor and the criminal defense lawyer know best the defendant’s conduct and background, and the proper dose of punishment. Remember, at the time of plea, the judge has heard nothing more than the brief plea discussion, which merely sketches the criminal offense conduct and says nearly nothing about the defendant’s background. The presentence investigator might excavate sordid details of the crime and the defendant’s background, which might justify a more severe sentence.
The pre-sentence interview
The weight of legal authority holds that a presentence interview is not a critical stage of the proceedings at which the criminal defendant has a right to counsel. These rulings are premised on the belief that the investigator acts as an arm of the court, not an adversary. However, many jurisdictions permit an attorney to attend, either by rule or custom. In practice, the defendant’s attorney should attend the interview unless his or her presence would so offend the investigator as to result in a hostile interview. If the investigator resists, the defense attorney can explain that he is there principally to facilitate the interview and to avoid misunderstandings. For the most part, in fact, that should be the defense attorney’s role – along with taking extensive notes of the defendant’s remarks.
Whether or not defense counsel is present, the defendant should follow these general guidelines for the interview:
Providing information to the investigator
The defendant’s criminal trial lawyer should submit information about the defendant, the defendant’s version of the criminal offense, and any mitigating factors as soon as possible to increase the likelihood that the probation officer will include the information in the report. The officer’s endorsement of the information cloaks it with a credibility that defense counsel’s post-report sentencing memorandum will not have. Information submitted to the investigator should be specific and be accompanied by supporting documentation to which the officer can refer.
If there is no agreement on the sentencing guidelines range, the probation officer should be given factual statements, references to the trial record or law enforcement reports, and the law that supports a favorable guideline calculation. The defense attorney’s goal should be to make the probation officer’s job easier and his or her calculations defensible. The PSIR’s initial calculation carries inertial heft, so that a favorable one imposes a substantial burden on the prosecution.
With respect to the defendant’s personal background, one family member should be designated as the ambassador to the presentence investigator. This should be someone who is responsible and sympathetic to the defendant, who can assemble pertinent information, share it with the investigator and support it with corroborating details and documents.
Challenging the PSIR
It is important to challenge inaccuracies in the PSIR and to ask the judge to order inaccurate allegations be redacted from the PSIR because:
The defendant’s criminal trial lawyer should obtain the report far enough in advance of sentencing to review it with the defendant, investigate its inaccuracies, research any legal issues on merger, concurrency of sentences and guidelines calculations, and file written objections. On many issues, such as the facts underlying prior convictions, family history, and drug use, the defendant is an essential starting point for any challenges.
A criminal defendant has a right to receive the PSIR in sufficient time to review and challenge it. This right may be established either by rule (e.g., the Federal Rules of Evidence) or by constitutional due process. If the materials are received late, the criminal defense lawyer should request a continuance and justify the request with an explanation of what investigation and research needs to be done. The court cannot rely upon unsupported, conclusory assertions from the prosecution which work their way into the report. For example; in a case where there was no evidence at trial about the defendant’s leadership role in the criminal offense, the probation officer and court could not rely on prosecutions’ bald allegation that defendant deserved an upward adjustment for his leadership role.
Defense counsel should object, in writing and with specificity, well before sentencing. The written objections should refer to trial evidence or witness statements that support the defendant’s position, or give specific reasons why the information underlying the report is unreliable. Defense counsel should object even if an inaccuracy does not affect the defendant’s sentencing range because it might negatively impact the defendant’s security classification. For example, if the presentence report indicates that a prior conviction for simple assault rested upon sexually abusive conduct, the defendant will receive a “public safety factor,” which disqualifies him from minimum security prison, even if he was never convicted for the sexually abusive conduct.
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