Sentencing: Presentence Report

The U.S. Supreme Court has ruled that PSIs are mandated only in death penalty cases; in Figure 2 other cases, there is no right to a PSI unless such a right is granted by statute. State laws vary, with some requiring PSIs for all felony cases or if the defendant faces a period of incarceration.

Other critical legal issues include the defendant's right to review the PSI, the means of addressing inaccuracies, the use of hearsay, and the use of evidence excluded from trial proceedings. Although the U.S. Supreme Court in two landmark cases (Williams v. Oklahoma, 358 U.S. 576 (1959) and Williams v. New York, 337 U.S. 241 (1949)) determined that there is no denial of due process when a court considers a PSI without disclosing its contents, most states and the federal system allow the defendant to review the report's content except in certain circumstances. For example, under Federal Rules of Criminal Procedure, Rule 32(c) (3), the defendant has access to the PSI except when the disclosure will disrupt the rehabilitation process, the information was obtained on a promise of confidentiality, or when disclosure could cause potential harm to the defendant or other individuals. However, when information is withheld the court must provide a written summary and give the defendant the opportunity to respond.

Recent federal case law has also established that inaccuracies in the PSI are not sufficient grounds for revocation of an imposed sentence if the error is "harmless." The burden is on the defendant to prove the error was harmful. If the information is proven harmful, the courts have ruled that the court is obliged to vacate the sentence. In regard to hearsay evidence, the courts have determined that, while not admissible during trial, hearsay evidence can be included in a PSI. Discretion is left to the judge to determine which information is acceptable and what should be excluded. In the case Gregg v. United States, 394 U.S. 489 (1969), the Supreme Court held "there are no formal limitations on contents, and they may rest on hearsay and contain information bearing no relation whatever to the crime with which the defendant is charged" (p. 18).

In the case of United States v. Schipani, 435 F.2d 26 (2d Cir. 1970), the Second Circuit Court of Appeals ruled that the exclusionary rule's prohibition against illegally obtained evidence at the trial stage is not applicable at the sentencing stage. As of the year 2000, the courts had still not addressed the issue of evidence illegally gathered solely for use in the PSI.

The U.S. Supreme Court, in the case Minnesota v. Murphy, 465 U.S. 420 (1984), established that probation officers are not obligated to provide Miranda warnings when interviewing defendants. With the exception of Oregon, defendants do not have the right to have an attorney present at the PSI interview.