Standard of Proof: Consider pointing out that the report fails to articulate that the information is alleged or inferred. Publication 107 states, “while the court may consider a vast amount of information in determining an appropriate sentence, it is important that the probation officer distinguish between information that is factual, inferred, or alleged. The court is not bound by the Federal Rules of Evidence at sentencing in considering whether a fact has been proven by a preponderance of the evidence, but information should have a “sufficient indicia of reliability to support its probable accuracy.” [Pub107, III-2]
Supporting Documentation: Probation officers should have supporting documentation to back up challenges by counsel. “Attorneys for opposing sides may aggressively contest the accuracy of facts contained in the presentence report or application of the guidelines to those facts. Officers should be prepared to respond to these situations professionally by having all supporting documentation readily at hand. [Pub107, I-1]. “Every effort should be made to provide the court with reliable information, since inaccurate information that is relied on by the court or others may lead to unfair or unintended results.” [Pub107, -2]
The hearsay evidence, however, must have some indicia of reliability. When evaluating potentially damaging allegations obtained during the course of the presentence investigation, the officer must consider factors such as the relationship between the defendant and the individual making the allegation, the nature of the allegation, the time frame in which the alleged conduct occurred, and the presence or absence of corroborating information. [Pub107, III-3]
Tuesday, February 2, 2010
United States Probation Publication 107
When preparing for that all important Presentence Investigation Report (aka the PSI), it is important to consult "Publication 107". Published by United States Probation, it has sections for how the investigation is to be conducted, how the interview should proceed, and limitations on the information that should be included. An example of some gems(from FDEWI Blog, full post here):
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