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July 14, 2009

Intriguing Sixth Circuit ruling on victim access to PSR

A little opinion from the Sixth Circuit yesterday In re Siler, No. 08-5215 (6th Cir. July 13, 2009) (available here), should be reviewed by any and everyone interested in victims' right to access presentencing reports and/or in defendants' rights to keep PSR's private.  Here is how the interesting opinion gets started:

This appeal arises in the context of the defendants’ criminal trial, although the issue now before us is unrelated to the merits of the Government’s case against the defendants.  Petitioners Lester and Jenny Siler sought access to the defendants’ Presentence Reports (PSRs).  The defendants were Campbell County law enforcement officers who violated Lester Siler’s constitutional rights while arresting him.  The defendants pled guilty to federal charges for their actions, and the Silers subsequently sued them for civil damages.  Following discovery in the civil case, the Silers moved the district court in each of the defendants’ criminal cases to release the defendants’ PSRs to them.  The district court denied the motions, correctly we conclude. There is no apparent authority for the release of such documents in this context.  But even if the district court did have authority to entertain the Silers’ motions, it did not abuse its discretion in denying the Silers’ motions because PSRs are confidential, nonpublic documents, and the Silers did not show that they had a special need to have access to them.

July 14, 2009 at 11:22 AM | Permalink


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Tracked on Jul 14, 2009 5:43:09 PM


Having never seen one, unsurprising since they are confidential, what sort of information do they contain that justifies the confidentiality?

Posted by: Soronel Haetir | Jul 14, 2009 11:54:03 AM

Also it's pretty sad to have an attorney bungle a case of this nature. Almost have to credit SC's CCE theory this time. I wonder if bungling discovery would rise to legal malpractice.

Posted by: Soronel Haetir | Jul 14, 2009 12:07:10 PM

They contain information regarding (1) the charges, verdicts, and applicable statutes (including minimum and maximum sentences); (2) the offense (including victim impact); (3) defendant's personal and family history; (4) guidelines calculations, including recommended dispositions as to disputed guidelines factors and requests for up or down departures; (5) financial condition (relevant to ability to pay a fine); (6) any rehabilitation factors (such as substance abuse or mental health treatment); and (7) any sentencing recommendations by the probation officer (which are generally overridden by the judge's own decision).

Though there's not a lot of law on it, it's generally recognized that the whole thing is confidential because it is prepared for the court's own use and not the parties' advocacy, and because making it public might make some sources of information (such as family members, neighbors, employers, or victims) reluctant to be candid with the Court.

Protection of the defendant's privacy is secondary to the above main purpose. But to the extent the defendant's privacy is considered, the parts warranting confidentiality are the personal and family history, which, depending on the case, can be quite intimate and detailed; the statement of financial condition; and rehabilitation factors. Also, statements regarding victim impact may affect the privacy interests of victims.

The fact that the PSR is confidential does not mean that the parties may engage in advocacy hidden from public view. If the defendant makes arguments based on personal history, for example, those arguments (in the sentencing brief and the sentencing transcript) are on the public record.

Posted by: Def. Atty. | Jul 14, 2009 1:18:21 PM

In the general category of "the More You Know" (chimes), the Fifth Circuit held in Arguelles-Olivares that there was no error in admission of a PSR in immigration court to prove that a felony was 'aggravated,' even though no one had ever moved to disclose the report in district court. How immigration officials got their hands on this confidential document was a *complete mystery* of course.

Posted by: Texas Lawyer | Jul 14, 2009 2:00:41 PM

One quibble with Def. Atty. at 1:18:21 - because the objections and addenda to PSR's are also sealed, there is legal advocacy hidden from public view. I know also that sentencing memoranda are occasionally kept outside the record, too. I don't know if there's a rule on this.

Posted by: Texas Lawyer | Jul 14, 2009 2:31:23 PM

and information about being a cooperator is in there for appropriate defendants.

Posted by: = | Jul 14, 2009 5:05:39 PM

It's true, as Texas Lawyer points out, that after the PSR is first disclosed to the parties, both parties have an opportunity to raise objections to the PSR, after which probation has an opportunity to revise the PSR in response to those objections. The objections and the revised PSR, like the initial PSR, are also kept confidential.

However, at sentencing, the judge must resolve, on the record, any remaining disputes about the PSR, and must also put on the record his complete guidelines calculation (both the agreed and disputed parts). So even though the first round is conducted in confidential letters, all of the facts and arguments that are made to the judge at the sentencing hearing (either in the sentencing briefs or during the hearing itself) do make it onto the record.

If there are sentencing briefs that are sometimes allowed to be filed under seal, that would be for reasons specific to the individual case. (For example, information related to cooperation might be kept confidential, where disclosing it would risk interfering with an ongoing prosecution or present a safety risk for witnesses.) That would be an exception to the general rule, which is that papers a party files with the court are public documents, and sentencing hearings are public and conducted in open court.

Posted by: Def. Atty. | Jul 15, 2009 10:40:43 AM

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