Why It is Critical to Challenge the Presentence Report (PSIR)

A successful challenge to the facts in the PSIR and the sentencing guideline calculations can be critical factors in achieving the lowest possible sentence.

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The PSIR must be completely accurate.

People v Maben, released for publication on December 10, 2015, addressed challenging the presentence report (PSIR) in criminal cases. The Michigan Court of Appeals held that a trial court must resolve a defendant’s challenge to a victim impact statement in the PSIR that went beyond describing the impact of the defendant’s actions on the victim. A PSIR is important because it can affect a defendant’s security classification or parole consideration. The Michigan Court Rules require that a defendant be allowed to explain or challenge the accuracy or relevancy of any information in the PSIR. Unchallenged information is presumed accurate. However, challenged information must be addressed, and the sentencing court must state that it did not consider the contested information when sentencing and strike it from the PSIR.

The sentencing court in Maben believed it had no authority to strike allegations from the victim’s impact statement and that the PSIR was presumptively accurate. The entire statement need not have been stricken. However, the challenged portions need to have been addressed and were not.

The Difference Between a Sentencing Memorandum and the Presentence Investigation Report (PSIR)

The Defense Sentencing Memorandum and the Presentence Investigation Report (PSIR) are two distinct documents used in the sentencing phase of a criminal trial, each serving a different purpose and originating from different sources.

Defense Sentencing Memorandum: This document is prepared by the defense attorney and submitted to the court. Its primary purpose is to advocate for the defendant, presenting arguments and information favorable to the defendant’s case in the context of sentencing. The memorandum typically includes mitigating factors, such as the defendant’s background, character, personal circumstances, any remorse shown, and potential for rehabilitation. It may also reference legal arguments, such as relevant case law, to support a request for a more lenient sentence. The defense attorney uses this document to paint a comprehensive, sympathetic picture of the defendant and to argue for a specific sentencing recommendation.

Presentence Investigation Report (PSIR): The PSIR is prepared by a probation officer and serves as an objective report, providing the court with detailed information about the defendant’s background and the circumstances of the offense. The report includes a variety of information, such as criminal history, family background, education, employment history, mental and physical health information, and any substance abuse issues. It also contains statements from victims and details about the impact of the crime. The PSIR helps the judge understand the full context of the defendant’s life and actions, aiding in determining an appropriate sentence. It is meant to be a neutral, fact-based report, although it may also include a sentencing recommendation based on guidelines and the probation officer’s assessment. Because misinformation can impact sentencing, challenging inaccuracies in the presentence report (PSIR) is vital.

While both documents inform the judge’s sentencing decision, the Defense Sentencing Memorandum is a subjective, advocacy-based document focused on arguing for a particular sentence from the defendant’s perspective. In contrast, the PSIR is an objective report that provides a comprehensive overview of the defendant’s background and the crime’s impact, intended to aid the judge in making a well-informed sentencing decision.

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What is the Process for Challenging the PSIR?

State and federal courts differ on how defense attorneys challenge the accuracy of the presentence report (PSIR). In state court, most judges prefer the attorneys present and argue contested sections of the PSIR at the sentencing hearing. Most judges will accept a memorandum supporting an objection if the defense attorney is savvy and proactive enough to file one. In federal court, the defendant can file objections to the PSIR with the U.S. Probation Department within 14 days of receipt of the report. The probation officer can modify the report if they think it is appropriate. If not, the PSIR will reflect the objections, and the parties can argue their respective positions at the sentencing hearing.

What is the danger of an inaccurate PSIR?

The accuracy of a Presentence Investigation Report (PSIR) in Michigan is crucial, as it has significant implications for a defendant’s sentencing and subsequent treatment within the criminal justice system. The PSIR is used by the court when sentencing a defendant for a felony offense, and its use in misdemeanor cases is discretionary. It plays a pivotal role in enabling the court to make an informed judgment regarding the defendant’s rehabilitation possibilities and effectively utilize sentencing alternatives​​.

Inaccuracies in a PSIR can have serious consequences:

  • Impact on Sentencing: The PSIR influences the judge’s decision on the appropriate sentence. If it contains inaccurate information about the defendant’s criminal record, personal history, or the nature of the offense, it could lead to a harsher sentence than what might be appropriate. Inaccurate information might include errors in the defendant’s criminal history, misrepresentations of the defendant’s background, or incorrect details about the current offense.
  • Long-Term Implications: The significance of the PSIR extends beyond the sentencing hearing. It is relied upon by prison officials for inmate placement and plays a crucial role in decisions related to an inmate’s custody and release. This means that inaccuracies in the PSIR can affect the defendant’s experiences while in prison, including the type of facility they are placed in and their eligibility for certain programs or early release​​.
  • Challenges in Correction: While defendants have the right to challenge inaccuracies in the PSIR, the process can be complex. The sentencing court must respond to challenges to the accuracy of the information in the PSIR, and the court has a range of options in responding, including determining the accuracy of the information, accepting the defendant’s version, or disregarding the challenged information. If the court finds the contested information inaccurate or irrelevant, it must strike that information from the PSIR before sending the report to the Department of Corrections. However, establishing a factual basis for any claim of inaccuracy is essential, and the burden of proof often lies with the prosecution​​.
  • Difficulty in Post-Sentencing Corrections: If inaccuracies are not challenged and corrected before or during the sentencing hearing, addressing them later can be challenging. While it’s possible to challenge the PSIR on appeal, appellate courts are generally reluctant to send a case back to a trial judge unless the error is obvious. Usually, they only send it back for minor corrections rather than for new hearings or a new trial​​.
  • Evidence in Future Cases: Police and prosecutors examine previous presentence investigation reports when investigating allegations of new offenses. For example, suppose someone is investigated for fraud, and the police want to search their phone records. Investigators might obtain a previous PSIR to include in a search warrant application proof that the accused is associated with that phone number. Also, anything the defendant says to a probation officer can be used as evidence in a future prosecution.

Given these significant impacts, it’s essential for defendants and their attorneys to review the PSIR for accuracy and completeness thoroughly and to take appropriate steps to challenge and correct any inaccuracies. This vigilance ensures fair sentencing and treatment within the criminal justice system.

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Unsurpassed Success Challenging the Presentence Report in Criminal Cases

Challenging an inaccurate presentence report at the criminal sentencing hearing is critical. It can be the difference between getting parole or not or getting a low-security placement. The attorneys at LEWIS & DICKSTEIN, P.L.L.C. take the time to carefully review a PSIR and prepare a detailed and authoritative challenge of any inaccuracies. Our lawyers understand that sentencing is often the most critical part of a criminal case. We take the time to review the report with our clients to ensure they understand its contents and recommendations.  

The lawyers at LEWIS & DICKSTEIN, P.L.L.C. know precisely what to do to convince a sentencing judge either to adopt the recommendation contained in the PSIR or sentence more favorably to our clients than the recommendation would have provided. LEWIS & DICKSTEIN, P.L.L.C. has a reputation for success in all areas of criminal law and defense. Its attorneys are respected by their peers, the courts, and current and former clients. If you have a criminal law matter that you need help with, LEWIS & DICKSTEIN, P.L.L.C. can help.

Call us today at (248) 263-6800 for a free consultation or complete an online Request for Assistance Form. We will contact you promptly and find a way to help you.

We will find a way to help you and, most importantly,
we are not afraid to win!

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