The U.S. District Court for the Middle District of Pennsylvania has amended its local Criminal Rule 32.7 to require mutual discovery of all material supplied to the probation officer by the prosecutor and defense counsel for use in preparation of the presentence report, which the court relies upon in determining the sentence. This means whatever information the prosecutor provides the probation officer about the defendant’s conduct must be disclosed to the defense attorney at the same time, and likewise the defendant’s attorney must disclose to the prosecutor what the defense attorney discloses to the probation officer. Civil practitioners who read this will most likely ask, “What is the big deal? If you file something the judge will see and use, opposing counsel should see it.”
The big deal is that in many jurisdictions, including the Eastern and Western districts of Pennsylvania, the prosecutor is not required to copy the defense counsel on what the prosecutor files with or makes available to the probation officer. The defense counsel may eventually see it reflected in the probation officer’s report. At that point, the defense counsel is swimming upstream late in the process to rebut information or a witness statement he or she has not seen. The Middle District amended rule solves many problems.
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