Proposal to Amend Federal Rules for Victim Access to Presentence Reports

Page 38 of 52 2005 B.Y.U.L. Rev. 835, #899 related parts of the presentence report; without such access they are unable to effectively make their sentencing recommendation. In view of that legal landscape, there are three ways in which the Federal Rules of Criminal Procedure might deal with disclosure of the presentence reports to victims: (1) Complete Disclosure. The rules could direct full disclosure of the presentence report to the victim. While no statute bars this approach, legitimate policy objections might be raised. Some reports may contain sensitive private information about the defendant such as results of psychiatric examinations, prior history of drug use, or childhood sexual abuse. Some reports may also reveal confidential law enforcement information that should not be widely circulated. Victims may not always need access rt, 269 to these parts of the report. While a number of states give victims unfettered right to access the presentence repo a more limited approach seems appropriate in the federal system. [*900] (2) Selective Disclosure. The rules could direct that the probation office redact any presentence report to remove confidential information and then provide the redacted report to the victim. This approach, too, is problematic; it would require considerable work by busy probation officers to prepare an additional document - a redacted report - presumably only after consulting with the attorneys on both sides of the case about what might be viewed as confidential. (3) Disclosure through Prosecutors. The simplest solution to the competing concerns is to disclose the report to victims through an intermediary: the prosecutor. The prosecutor would serve as the filter for confidential information and assist the victim by highlighting critical parts of the report. Opponents might object that this approach would burden prosecutors, who are no less 270 busy than probation officers. But the CVRA already gives victims the right to "confer" with prosecutors, and presumably they will confer regarding the important topic of sentencing. Moreover, many U.S. Attorney's Offices already have Victim- Witness Coordinators who communicate with victims regarding impact statements. The CVRA also authorizes increased funding of $ 22 million for the Victim-Witness Assistance Programs in U.S. Attorney's Offices, presumably enabling those offices to expand their victim services. 77! It might be burdensome to require that prosecutors disclose presentence reports to victims in all cases, even when they are not interested in such disclosure. Accordingly, disclosure of the report should be required only upon request of a victim. For all those reasons, the Commission should amend the rules to give requesting victims access to presentence reports through the prosecutor. In addition, some of the aspects of preparing and disclosing presentence reports are covered in Chapter 6.A of the United States Sentencing Guidelines Manual. *’? The Manual falls within the jurisdiction of the U.S. Sentencing Commission. Accordingly, the Advisory Committee on Criminal Rules should [*901] coordinate with the Commission to ensure that any changes in the Criminal Rules are consistent with the provisions of the Manual. Rule 32(f), (h), (i) - Victim Opportunity To Object to Presentence Report The Proposal: Rule 32(f), (h), and (i) should be amended to allow the victim to object to the presentence report as follows: (f) Objecting to the Report. (1) Time To Object. Within 14 days after receiving the presentence report, the parties must state in writing any objections, including objections to material information, sentencing guideline ranges, and policy statements contained in or omitted from the report. The attorney for the government or for the victim shall raise for the victim any reasonable objection by the victim to the presentence report. 269 See supra note 255. 270 18 U.S.C.A. 3771(a)(5) (West 2004 & Supp. 2005). 271 See 118 Stat. 2260, 2264 (2004). 272 See supra note 257 and accompanying text. DAVID SCHOEN HOUSE_OVERSIGHT_017752