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How to Prepare for Your Meeting With The Court’s Probation Department?
Prior to the sentencing hearing you will meet with a member of the U.S. Probation and Pretrial Services officers to be interviewed about your background and your case. The purpose of this interview is to assist the department in their preparation of a presentence report (PSR). The presentence investigation is required unless your case meets one of the exceptions set forth in 18 U.S.C. §3593(c) or some other applicable statute, or the judge believes that he or she has enough information to meet the obligations under 18 U.S.C. §3553. If the court sentences you without a PSR, then the judge must explain why on the record.
The meeting itself can take place in many different places, including the jail or prison where you are being held. It can also be conducted via Zoom, face to face in your home or office, over the phone without video, or at a government office. While this is a non-adversarial meeting, your federal criminal defense attorney will be invited to attend. This is because Rule 32 of the Federal Rules of Criminal Procedure provide that your attorney must be given notice of the interview and given a reasonable opportunity to attend. The rule provides that your attorney must request notice, but in almost all circumstances, notice will occur without the request.
It is worthwhile to consider that the probation officer assigned to your case is a member of the law enforcement team. This means two things. First, you should be honest and direct about any information you provide. Second, anything you say can, and if appropriate, will be used against you.
This does not mean you should not cooperate fully in the investigation. In fact, the contrary is most often true, and full cooperation can result in a better final report. However, due to the importance of this meeting you and your federal criminal defense lawyer should meet and discuss how this meeting will be handled so that you are well prepared and ready to be appropriately cooperative.What Type of Information Will the Probation Officer Seek to Obtain?
Prior to your meeting, the probation officer ("PO") will have already obtained information about the facts and circumstances of your case. The PO may have also spoken with the AUSA assigned to your case, and/or spoken with one or more of the investigators. Rule 32 of the Federal Rules of Criminal Procedure provides that the PO should also obtain information regarding your criminal history, if any, employment history, and "characteristics."
These characteristics would include information regarding your financial situation, including enough information to perform a calculation of your net worth. Also, information about your emotional health, mental health, physical health, recent or past physical or emotional trauma, and any other circumstances that might be helpful for the judge to know about when passing sentence, and for the department of corrections to know about when determining "correctional treatment."
The probation officer will also look for information that will allow the judge, and more importantly, the prison corrections system, to determine the nature and extent of prison programs and non-prison resources available for you. The PO will also be interested in learning about your past or current drug use, education and employment history, and family history.Obtaining a Copy of the Presentence Investigation and Report Before Sentencing
Under Rule 32 of the Federal Rules of Criminal Procedure, you must consent in writing before the PO will be allowed to provide the report to anyone unless you have plead or been found guilty. The Rule also provides that your lawyer is entitled to receive a copy of the report at least 35 days prior to the date of sentencing. You can waive this minimum period, but it is rarely in your best interest to do so.
Your PSR may or may not contain a sentencing recommendation. This is because the judge has the power to direct the probation officer to not disclose any sentencing recommendation to anyone other than the judge. For your federal criminal case pending in the Eastern or Western Districts in Michigan, the report will nevertheless contain a detailed calculation of the sentencing guidelines.Importance of Accuracy of the PSR
It is of critical importance for both you and your federal criminal defense attorney to carefully review the PSR at great length for completeness and accuracy in all regards, and to do so in a timely way. One reason this is important is because the PSR will follow you throughout your entire stay in the federal criminal justice system. Consequently, if the material in the report is inaccurate, that material will be considered by the Federal Bureau of Prisons and may adversely impact your eventual custody arrangement.
There are several opportunities in the federal system for participation in programs which can reduce your sentence or increase educational opportunities that may otherwise be available to you. If the information in your PSR is inaccurate, you may be deemed ineligible for these programs. A fair and accurate PSR is essential to assure that you are provided with the best options available.Objections to the Accuracy of the PSR
While not previously mentioned, the AUSA assigned to your case will also be provided with a copy of the PSR. Rule 32 of the Federal Rules of Criminal Procedure sets the procedures for objecting to the report. Both sides are given an opportunity to make written objections to the PSR, either factually or in terms of the evidence that came out during the case.
According to Rule 32 of the Federal Rules of Criminal Procedure, objections by either side must be made within 14 days after receiving the PSR. These objections must be put forth in writing. Objections may be made to the material or "factual information," the calculation of the sentencing guideline ranges, and any "policy" statements that may be contained in or that are missing from the report.
Your federal criminal defense lawyer must provide a copy of their objections, if any, to the AUSA. The opposite is also true. And of course, the written objections must be provided to the PO, who will then investigate further to determine if corrections are required. This investigation may include meeting with you again. Then, within a minimum of 7 days, the PO will provide the parties and the court with the amended report along with an addendum setting forth any unresolved issues or objections. The addendum will include a recitation of the basis for the objections and the PO's comments on them.