Especially in felony and more serious misdemeanor cases, judges typically rely on presentence reports, prepared by probation officers, in making sentencing decisions. Probation officers usually prepare these reports during a several-week interval between the conviction and the date set for sentencing.
To prepare the report, a probation officer (or a social worker or psychologist working for the probation department) first interviews the defendant and checks the defendant's rap sheet (criminal record). The probation officer typically talks to the victim, the arresting officer, and the defendant's family and friends.
In addition to the information gleaned from these sources, most probation presentence reports also provide:
Good defense lawyers make sure that the probation officer preparing the report hears about all the good things the defendant has done and is doing. For example, if the defendant has enrolled in an addiction treatment or counseling program or has an employer willing to say nice things about him, a defense attorney will transmit that information to the probation officer. It's important that the defense make the presentence report appear as favorable to the defendant as possible, because the report is likely to have a significant impact on the judge's sentencing decision.
Probation officers often question defendants very closely. An officer is likely to want to know a defendant's:
The defendant should come to the interview prepared to talk about these topics. Whenever possible, the defendant should bring documents that provide these facts (for example, a letter from an employer or military discharge papers). The defendant also should be prepared to explain why probation or some other lenient sentence is appropriate under the circumstances.
Judges typically don't have time to investigate the circumstances of individual cases, so they usually rely heavily on—and often rubber-stamp—sentencing recommendations in presentence reports. For this reason, it is important for the defendant to make a positive impression on the probation officer preparing the report.
The defendant should be as prepared as possible before meeting with the probation officer, because the defendant may not be allowed to bring a lawyer into that interview. Preparation is also critical because probation officers may rely, when making their recommendations, on information that would not have been permissible in court at trial, such as inadmissible hearsay and illegally obtained evidence. The defendant must be careful about what he or she says in the interview, because probation officers can use the defendant's statements in their reports.
Probation officers are at least as overworked as other players in the criminal justice system. And they are as susceptible to tough-on-crime public opinion as anyone else. Thus, many use "boilerplate clauses" (prewritten clauses used in case after case) in their reports. And the probation officer may prepare a report that justifies predetermined decisions rather than weighing the merits of an individual case.
Defense lawyers, well aware of the limitations under which many probation officers work, often take a number of steps to try to ensure that a judge is aware of information favorable to the defendant. Defense lawyers can:
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.