M E M O

TO: Joint Procedure Committee

FROM: Gerhard Raedeke

RE: Rule 32, N.D.R.Crim.P.; Sentence and Judgment

At its April 1996 meeting, the Committee reviewed the 1994 revision of Rule 32, Fed.R.Crim.P. The only amendment the Committee thought pertinent to North Dakota practice is the provision regarding who may attend a presentence investigation interview. The amendment provides defendant's counsel is entitled to notice and a reasonable opportunity to attend any interview of the defendant during the presentence investigation. Should North Dakota adopt a similar amendment?

Also, the Committee raised the question why the provision in Rule 32 was eliminated which provided for confidentiality by requiring copies of the presentence report to be returned and prohibiting additional copies from being made. The provision was eliminated, effective March 1, 1992, to follow the 1989 federal amendment. Reasons for eliminating the provision are given in the October 25-26, 1990 meeting material: 1) the report may be needed in the preparation of an appeal; 2) the defendant can get copies of the report through the Freedom of Information Act; and 3) no public interest is served by requiring return of the reports.

At its September 1996 meeting, the Committee instructed staff to prepare an amendment to Rule 32 defining the confidentiality of presentence investigation reports. The Committee thought the new provision should specifically define what information is confidential, rather than simply prohibiting copies from being made and requiring presentence reports to be returned. Also, Administrative Rule 41 and proposed Section 12-47-46, N.D.C.C., define the confidentiality of presentence reports by referencing Rule 32. Thus, the rule does need to specifically define the confidentiality of presentence reports.

The proposal provides for confidentiality of sensitive and potentially harmful information while allowing the parties and the public access to general information. Under the proposal, confidential information will be in an attachment, rather than in the presentence report itself. Only the presentence report will be available to the parties and the public. The definition of information to be excluded from the presentence report, but which may be included in an addendum, is from Rule 32, Fed.R.Crim.P. Should the proposal be adopted?