Historically, there has been a reluctance on the part of legislators and the courts to grant discovery to the defendant in a criminal case. This is attributable to the long-held view that any information given to the defendant will likely result in perjured defenses.

That old saw should have no weight at sentencing when the defendant has pleaded guilty or has been found guilty at trial. Yet it remains alive today. This is a proposal to grant discovery for the sentencing hearing.

In federal court, over 85 percent of the criminal charges filed result in guilty pleas. Of those that go to trial, over 90 percent result in convictions. Thus, the sentencing hearing on a purely numerical basis is the most important facet of the criminal justice system. The sentencing hearing takes on an even greater importance because of the federal sentencing guidelines, which require a complex compilation of factors that the federal judge, with the help of the probation officer, must decide. While the guidelines are advisory, all federal judges must first make a guideline determination of the sentence before deciding on the punishment. A majority of the sentences still approximate the guideline determination.

Although the sentencing hearing is vastly important, especially where there is a guilty plea at the outset, the defense counsel gets little notice or discovery of what the prosecutor presents to the probation officer who drafts the statement of the case, in which the probation officer describes the actions of the defendant for the court. The crucial information is supplied, ex parte, to the probation officer by the prosecutor. Especially important is the information supplied as to the relevant conduct that comprises all the uncharged acts of the defendant in the scheme or course of conduct.

For example, if the defendant were charged with defrauding one bank, the losses from the other banks the defendant defrauded in the scheme that were not charged, may be included to prove the overall relevant conduct. The prosecutor may supply additional information regarding upward adjustments to the sentence such as being a leader of a criminal group, adjustments for a breach of trust, or the use of sophisticated means. All the information is supplied by the prosecutor to the probation officer by memo, reports of federal agents, witness statements and accounting reports, none of which is required to be produced to the defense counsel. The prosecutor is under no obligation to provide this material to the defendant, and upon a request from defendant for disclosure may legally refuse to do so.

Although the defendant has the opportunity to supply his or her version of the offense to the probation officer, the bulk of the information about the defendant’s conduct is provided by the prosecutor, who has the benefit of reports by federal agents, witness statements, and information obtained by a grand jury subpoena. The probation officer is required to disclose his or her initial summary report to defense counsel for objection; however, once the probation officer has drawn his or her conclusions, it is difficult to rebut the report if defense counsel has not seen the extensive material the report is based upon.

While there is a formal discovery process for trial preparation contained in the federal criminal rules, there is no such process for the sentencing hearing. There are no formal rules of discovery for the sentencing process. Thus, for over 85 percent of the defendants (those who plead guilty before trial), the sentencing process is the first time there is any formal glimpse of the government’s evidence, and it is usually only through the written summary report of the probation officer.

Defense counsel have consistently criticized this process. Michael J. Engle, president of the Pennsylvania Association of Criminal Defense Lawyers, stated, “The present system is basically unfair; it is imperative that defense counsel be provided with all of the facts and relevant information that the government will rely upon that will affect the defendant’s punishment.”

Patrick Egan, president of the Eastern District chapter of the Federal Bar Association, said, “It is remarkable that counsel is not entitled to information provided to the probation department that impacts directly on the appropriate kind of sentence, or any basis for departing or varying from the applicable sentencing range. Decisions that can add or subtract years from a person’s sentence should not be made without adequate discovery.”

The local criminal rules of the Northern District of Illinois require that all information and pleadings submitted to the probation officer by the government and the defense counsel must be served on opposing counsel. The local criminal rules of the Middle and Western District Courts of Pennsylvania contain no provisions regarding serving the defendant with the government’s initial submission of information to the probation officer.

I propose that there should be a formal exchange of what both the prosecutor and defense counsel present to the probation officer so that both parties have a chance to rebut the other’s input. If there is to be a contested hearing at sentencing, the defense should be aware of what the prosecutor intends to provide. There should be no surprises, and the court should be aware of any contested facts well ahead of time.

I propose that Eastern District Local Criminal Rule 32.3, paragraph 2, should be amended to require the government to produce to the defendant all reports, witness statements and results of examination that the prosecutor provides to the probation officer. This should include all agent reports, memos by the prosecutor, expert reports, or accountant reports and legal memoranda. The defense counsel should be required to produce to the prosecutor all the material and legal memoranda that the defense counsel submits to the prosecutor.

Where the defense counsel finds that the government attorney’s disclosure indicates other relevant material in the possession of the government, the court in its discretion, may order additional production, based upon a showing of particularized need. I propose an amended Local Criminal Rule 32.3, paragraph 2 as follows:

“Rule 32.3 . . .

2. At the time the presentence investigation and report are ordered, a sentencing hearing date will be fixed by the sentencing judge. The attorney for the Government will make available to the probation officer all investigative and file material relevant to the case. The attorney for the government will provide to the probation office all investigative and file material relevant to offense and the defendant’s relevant conduct, and any material relevant to the adjustments to the sentencing guidelines. The attorney for the government will provide to the defense counsel all material provided to the probation officer, including any legal memoranda regarding sentencing. Within 21 days of receiving the material from the attorney for the government, the defense counsel will provide to the government attorney all material and legal memoranda defense counsel has submitted to the probation officer.

The court, in its discretion, may grant defense counsel’s request for additional material from the government relevant to sentencing, based upon a showing of particularized need. The sentencing hearing date may be continued if necessary.”

This proposed amendment will require little additional work for the court, and little additional work for the prosecutor, except to serve the defendant with copies of the material that the prosecutor provides to the probation office. The discovery will be a two-way street. •

Peter F. Vaira is a principal shareholder in the Philadelphia law firm of Vaira & Riley. He is the author of Eastern District Federal Practice Rules, Annotated (Gann Law Books). He can be contacted by e-mail at p.vaira@vairariley.com.