M E M O
TO: Joint Procedure Committee
FROM: Gerhard Raedeke
RE: Rule 32, N.D.R.Crim.P.; Sentence and Judgment
Rule 32, N.D.R.Crim.P., needs to be be amended to clarify whether presentence investigation reports are open to the public for inspection. The Committee has considered the issue, but has not yet decided how the confidentiality of presentence investigation reports should be defined.
Generally, under Administrative Rule 41, judicial system records are open to the public for inspection. However, the Appendix to AR 41 indicates Rule 32 provides for confidentiality of presentence investigation reports. Likewise, as amended in the 1997 legislative session, Section 12-47-36, N.D.C.C., defines the confidentiality of presentence investigation reports by deferring to Rule 32. The problem and source of confusion is that Rule 32 does not address whether the public has a right to inspect the presentence investigation report.
Currently, Rule 32 only addresses inspection of the presentence investigation report by the defendant. The Rule provides the defendant is to be provided with a copy of the report unless the report contains harmful information. The Rule does not address whether the public has a right to inspect the presentence
The Committee has already rejected two proposals addressing the confidentiality of presentence investigation reports. First, the Committee rejected a proposal which would have allowed public inspection of the presentence investigation report. Sensitive or potentially harmful information would have been located in an addendum that would have been confidential as to both the public and the parties. Committee members were critical of treating the public and the parties equally. They thought the parties should have a greater right of inspection than the public.
A second proposal was rejected by the Committee at the last meeting, which was submitted by the Division of Parole and Probation. The proposal would have made the presentence investigation report open for inspection by the public and the parties, but any addendum would not have been open for inspection by the public. The court would have had the option of allowing the parties to inspect any addendum.
The Committee had concerns about the parole and probation officer determining what material should be kept confidential as a consequence of being located in an addendum by the officer. Instead, the Committee indicated it was in favor of making presentence investigation reports and any addendum confidential except as disclosed in the discretion of the court.
Accordingly, as instructed by the Committee, a tentative proposal was sent to the Committee's members for preliminary review. Of the responses, 11 were in favor and 2 were opposed to the proposal. In the material following is the proposal sent to the Committee, the responses, and an alternative proposal based upon the responses.
The alternative proposal makes the presentence investigation report and addendum confidential as to the public. However, the defendant is entitled to a copy of the presentence investigation report. The defendant is also entitled to a copy of any addendum unless it contains harmful information.