What is the purpose of the Presentence Investigation Report (“PSI” or “PSR”) in criminal cases?

TIn 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 ,Idaho authorizes an adjournment between plea or trial and sentencing in felony cases for court officers (representatives of the presentence investigation team) to conduct a presentence investigation of the defendant and report to the judge and the parties. Judges use the Presentence Investigation Report (“PSI” or “PSR”) 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 PSI 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 PSI will cover the following areas:

• The underlying facts of the offense. The investigator usually relies upon the prosecutor or case agent for this, but might ask for the defendant’s version.
• The defendant’s health and medical and psychiatric background. The investigator will have the defendant sign releases for records, but will not know of special needs unless the defendant’s criminal trial lawyer tells the investigator. Among the topics covered here will be illegal drug use.
• Family background. The investigator will start with the defendant’s description of his family background, but may contact a sibling or parent to confirm the information.
• Educational and employment history. Be accurate. The investigator will seek corroboration.
• Assets, income and expenses. This becomes important where a fine or forfeiture is likely, or where the crime calls for restitution.
• Criminal record.
• Educational, treatment and rehabilitative programs available for the defendant. PSIs often fall short in this respect, but seek recommendations that might help keep the defendant from becoming a repeat offender (e.g., job training, drug and alcohol treatment, anger management classes and counseling for gamblers).
• Sentencing recommendation. The presentence investigator often will recommend a specific sentence to the judge.

The presentence interview

The defendant should follow these general guidelines for the interview:

• Criminal history questions
  The defendant should not volunteer information about his criminal history. Defendants often deny guilt of crimes to which they pleaded guilty, and sometimes in good faith assert that a case that resulted in a conviction and time served was “dismissed.” These inaccuracies can lead the presentence investigator to characterize the defendant as dishonest. Further, the defendant may inform the investigator about crimes that never would have been discovered (e.g., crimes in other states or convictions in local courts or before the minor judiciary). When asked, the defendant must answer questions about his criminal history honestly. Accordingly, the best strategy is to avoid the topic as much as possible.
• Drug use questions
  Questions about drug use should be handled on a case-by-case basis, depending on the defendant, the nature of the criminal charges, and the judge. Some judges consider drug use to be a mitigating factor, and reference in the PSI to the defendant’s drug use may facilitate entry into treatment programs, which could reduce the sentence. Drug dealers who sell to support their habit seem less culpable than those who sell out of greed. However, drug use is criminal conduct, and it may disturb some judges, especially if the defendant was on probation or parole while using drugs.

Providing information to the investigator

The defendant should submit information about the defendant, the defendant’s version of the criminal offense, and any mitigating factors as soon as possible to the presentence investigator. Information submitted to the investigator should be specific and be accompanied by supporting documentation to which the officer can refer.

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 PSI

It is important to challenge inaccuracies in the PSI and to ask the judge to order inaccurate allegations be redacted from the PSI because:

• The trial judge will rely upon unchallenged factual assertions in the PSI.
• Prison officials rely heavily on the PSI to arrive at a security classification. Inaccuracies about the defendant’s drug use, flight risk or history of violence may result in placement in a higher security prison or in more restrictive conditions of confinement, even if the inaccuracies do not affect the sentence.

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 PSI 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, at Minert & VanOrmer, we 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.

At Minert & VanOrmer, we often object to inaccuracies in the PSI even if an inaccuracy does not affect the defendant’s sentencing range because it might negatively impact the defendant’s security classification or the judge’s overall view of the defendant. 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.