DISCLOSURE OF PRESENTENCE REPORTS IN FEDERAL COURT DUE PROCESS AND JUDICIAL DISCRETION

• NCJ Number: 51360
• Journal: Hastings Law Journal Volume: 26 Issue: 6 Dated: (MAY 1975) Pages: 1527-1550
• Author(s): W F GARY
• Date Published: 1975
• Length: 24 pages
• Corporate Author: University of California
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

THE RULE GOVERNING DISCLOSURE OF PRESENTENCE REPORTS TO THE DEFENDANT, AND THE PROPOSED AMENDMENT OF THIS RULE, ARE ANALYZED TO DETERMINE THE DEGREE TO WHICH THE PROCEDURES RECONCILE SOCIETAL AND INDIVIDUAL INTERESTS.

Abstract

THIS DISCUSSION CONCERNS PROPOSED AMENDMENTS TO THE FEDERAL RULES OF CRIMINAL PROCEDURE. A PRINCIPAL SOURCE OF INFORMATION USED BY THE FEDERAL COURT AT SENTENCING IS THE PRESENTENCE REPORT. A BRIEF HISTORICAL ANALYSIS OF PRESENTENCE REPORT USE AND PROCEDURE IS PRESENTED FOLLOWED BY A CONSIDERATION OF DUE PROCESS RIGHTS AS THEY AFFECT REPORT DISCLOSURE. IT IS STATED THAT A DEFENDANT HAS A DUE PROCESS RIGHT TO BE SENTENCED ON THE BASIS OF INFORMATION WHICH IS MATERIALLY TRUE, AND THAT IF THE DEFENDANT IS NOT NOTIFIED OF THE INFORMATIONAL BASIS FOR THE SENTENCE IMPOSED, HE OR SHE IS EFFECTIVELY PREVENTED FROM EXERCISING THIS RIGHT. NONDISCLOSURE OF PRESENTENCE REPORTS, THEN, IS A CLEAR INFRINGEMENT OF A SUBSTANTIAL INDIVIDUAL INTEREST. REGARDING THE PUBLIC INTEREST, NONDISCLOSURE ALLEGEDLY PROTECTS INFORMATION SOURCES, ELIMINATES THE NEED FOR LENGTHY LEGAL PROCESSES THAT DISCLOSURE WOULD MAKE NECESSARY, AND, UNLIKE DISCLOSURE OF THE REPORTS, DOES NOT INTERFERE WITH REHABILITATING THE OFFENDER. THESE ARGUMENTS AGAINST DISCLOSURE ARE CONSIDERED TO BE WEAK AND UNSUBSTANTIATED. THE PRESENT DISCRETIONARY DISCLOSURE RULE IS DESCRIBED AND THE DUE PROCESS INADEQUACIES ARE POINTED OUT. THE PROPOSED MODIFIED DISCRETIONARY DISCLOSURE RULE WOULD MANDATE THAT THE DEFENDANT OR THE DEFENDANT'S COUNSEL WOULD BE GIVEN ACCESS TO THE PRESENTENCE REPORT, THE EXCEPTION BEING IN THOSE UNCOMMON CASES IN WHICH THE RISK OF HARM FLOWING FROM DISCLOSURE IS SO GREAT THAT IT SHIFTS THE BALANCE OF INTERESTS AWAY FROM THE INDIVIDUAL. THERE IS NO PROVISION, HOWEVER, TO REMEDY THE PRESENT RULE'S FAILURE TO REQUIRE A STATEMENT ON THE RECORD OF REASONS IN SUPPORT OF THE DECISION NOT TO DISCLOSE, AND SUCH AN OMISSION COULD INHIBIT THE RULE'S EFFECTIVENESS BY IMPEDING COMPLETE APPELLATE REVIEW OF DISCLOSURE PRACTICES. (DAG)