IN GARDNER V. FLORIDA THE SUPREME COURT REFUSED TO UPHOLD THE VALIDITY OF A PRESENTENCE INVESTIGATION REPORT, PARTS OF WHICH HAD BEEN KEPT CONFIDENTIAL DURING THE TRIAL AND APPELLATE STAGES OF THE CASE. THE COURT FOUND THAT WHERE A DEFENDANT IS SENTENCED TO DEATH ON THE BASIS OF INFORMATION WHICH HE HAD NO OPPORTUNITY TO EXPLAIN OR DENY, DUE PROCESS REQUIREMENTS HAVE BEEN VIOLATED. THIS HOLDING IS LIMITED TO CASES WHERE CAPITAL PUNISHMENT IS A POSSIBILITY AND WHERE THE SUBJECT OF DISCLOSURE IS AT ISSUE. THE OUTCOME OF THE GARDNER CASE IS VIEWED AS A RESULT OF THE COURT'S REEVALUATION OF THE CONSTITUTIONALITY OF THE DEATH PENALTY. THE FLORIDA STATUTE AUTHORIZING PRESENTENCE INVESTIGATION WAS HELD TO BE CONSTITUTIONAL IN THE CASE OF PROFFITT V. FLORIDA (1976), EVEN THOUGH THE STATUTE DID NOT REQUIRE THAT PRESENTENCE REPORTS BE SHOWN TO DEFENDANTS. PREVIOUSLY, THE COURT HAS REFUSED TO FASHION A RULE ON THE ISSUE OF PRESENTENCE REPORTS ALTHOUGH THE ISSUE HAS BEEN LITIGATED IN A NUMBER OF CASES (WILLIAM V. NEW YORK--1949 AND WILLIAMS V. OKLAHOMA--1959). WHILE REFUSING TO FASHION A DEFINITE RULE, THE COURT DID RECOGNIZE THE NEED FOR PROGRESSIVE GUIDELINES IN THE AREA OF DISCLOSURE, WHICH IS EVIDENCED BY THE COURT'S PROMULGATION OF THE AMENDMENT TO RULE 32 OF THE FEDERAL RULES OF CRIMINAL PROCEDURE IN 1974. THE AMENDMENT ALLOWS A DEFENDANT, UPON REQUEST, TO SEE HIS PRESENTENCE REPORT. GARDNER SHOULD NOT BE REGARDED STRICTLY AS A DISCLOSURE RULING. THE CASE MIGHT NOT HAVE BEEN HEARD HAD IT NOT BEEN FOR THE EXTENSIVE REEVALUATION OF THE DEATH PENALTY. MANY ISSUES REGARDING THE DEATH PENALTY ARE NOW CONSIDERED SIGNIFICANT ENOUGH FOR JUDICIAL REVIEW. THE COURT BELIEVES THAT IN DEATH PENALTY CASES, PRESENTENCE REPORTS ARE GENERALLY RELIABLE AND THAT DISCLOSURE PROCEDURES SHOULD BE ADMINISTERED ON AN INDIVIDUAL BASIS. ONE PREVAILING ARGUMENT AGAINST DISCLOSURE IS THAT IT WOULD AFFECT CONFIDENTIAL SOURCES, BUT STATES WHICH HAVE MADE DISCLOSURE MANDATORY HAVE NOT EXPERIENCED SERIOUS PROBLEMS IN THIS AREA. IT IS BELIEVED THAT PROPONENTS OF MANDATORY DISCLOSURE HAVE REASON TO BE OPTIMISTIC IN LIGHT OF THE GARDNER DECISION. (KJM)