Criminal Tax Liabilities & Sentencing Part III

Criminal Tax Liabilities & Sentencing Part III: The Pre-sentence Investigation Report

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In this podcast, I discuss the pre-sentence investigation report. Below is a quick and dirty outline:

  1. After conviction and prior to sentencing, a probation officer will interview the def. and prepare a PSR.
  2. In the PSR, the probation officer will:
  • Calculate the defendant’s offense level and criminal history category,
  • State the resulting sentencing range and kinds of sentences available,
  • Identify any factors relevant to the kind of sentence (e.g., probation, imprisonment),
  • Recommend a sentence w/in the applicable sentencing range, and
  • Identify any basis for departing from the applicable sentencing range

The PSR includes:

  • The defendant’s prior criminal record,
  • The defendant’s financial condition, and
  • Information sufficient to calculate restitution

The defendant is entitled to be represented by an attorney at the interview w/ the probation officer and I strongly recommend it.

Why is the pre-sentence investigation report important? For the following two reasons:

  1. Judges give deference to the recommendations of the probation officer. Thus, the PSR is instrumental in the sentencing judge’s determination. Both the defense and the gov’t may make formal objections to the PSR but the judge resolves all such disputes under the preponderance of the evidence standard – a low standard indeed.
  2. Apart from the judge and sentencing, the PSR follows def. throughout his time in prison and can affect various decisions as to def. after the judge imposes sentence (i.e., the defendant’s life in prison and any period of probation or supervised release).

Procedurally, once the PSR is prepared, the probation officer will provide a copy to the def., the defendant’s attorney, and the prosecutor.

The defense and the gov’t have the opportunity to make objections to the PSR at the sentencing hearing, which consists of oral arguments before the judge. The rules of evidence do n/ apply to the admission of testimony or other evidence at the sentencing hearing.

There are three times when defense counsel can have a big impact on the sentence that the judge imposes:

  1. Situation 1: Defense counsel bargains w/ the prosecutor.
  2. Situation 2: Defense counsel can work w/ the probation officer independently of the prosecutor – i.e., w/o forming an agreement w/ the prosecutor as in situation one. The goal is to try and get the probation officer to include favorable facts in the PSR.
  3. Situation 3: If the PSR contains something that you don’t like, you can make objections at the sentencing hearing that the PSR is wrong or should be modified by the judge and ask the judge to redact it from the pre-sentence investigation report.

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