skip navigation

PUBLICATIONS

Register for Latest Research

Stay Informed
Register with NCJRS to receive NCJRS's biweekly e-newsletter JUSTINFO and additional periodic emails from NCJRS and the NCJRS federal sponsors that highlight the latest research published or sponsored by the Office of Justice Programs.

NCJRS Abstract

The document referenced below is part of the NCJRS Virtual Library collection. To conduct further searches of the collection, visit the Virtual Library. See the Obtain Documents page for direction on how to access resources online, via mail, through interlibrary loans, or in a local library.

 

NCJ Number: 51360 Find in a Library
Title: DISCLOSURE OF PRESENTENCE REPORTS IN FEDERAL COURT DUE PROCESS AND JUDICIAL DISCRETION
Journal: HASTINGS LAW JOURNAL  Volume:26  Issue:6  Dated:(MAY 1975)  Pages:1527-1550
Author(s): W F GARY
Corporate Author: University of California
Hastings College of Law
United States of America
Date Published: 1975
Page Count: 24
Sponsoring Agency: University of California
San Francisco, CA 94102
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)
Index Term(s): Federal Code; Judicial discretion; Judicial process; Presentence investigations; Right to Due Process; Rights of the accused
To cite this abstract, use the following link:
http://www.ncjrs.gov/App/publications/abstract.aspx?ID=51360

*A link to the full-text document is provided whenever possible. For documents not available online, a link to the publisher's website is provided. Tell us how you use the NCJRS Library and Abstracts Database - send us your feedback.