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October 26, 2017 by Victor A. AfanadorDownload PDF

The Importance of Preparing for the Pre-Sentence Interview in the Federal Criminal SystemVictor A. Afanador

The federal criminal client you represent was just convicted after a guilty plea or a trial.  Up until this point you have conducted client interviews to try and understand the facts of the case and the circumstances that led to your client’s criminal case.  It’s likely that you have explored your client’s personal and family background, but do you really know her/him? Have you cared enough to dig a little deeper to try and discover the individual behind the criminal charges? Understanding and familiarizing yourself with that individual is crucial at this point, since your client will likely be facing an important interview with a federal probation officer.    

In the federal criminal system a Pre-Sentencing Report, is generated by a federal probation officer, and sent to the sentencing court with a sentence recommendation.  Federal Rule of Criminal Procedure 32 states that a probation officer must conduct a presentence investigation and submit a report to the sentencing court.  It also states that the probation officer must give the defense attorney notice to attend the interview.  Thus, this interview is probably one of the most important interviews your client and you will experience during the course of the criminal matter.   This interview will affect how your client is perceived by the probation officer and eventually the court that will sentence her/him.  So what do you do?  How do you prepare?  

After a plea or trial, if not just prior to same, is when quality time needs to be spent working your legal craft on humanizing your client.  The interview should establish that your client is a real person, with a family and life goals, and not just a faceless criminal that needs to be plugged into a sentencing table. 

Most of the time, the pre-sentence interview is scheduled shortly after the conviction.  Therefore, you should move quickly and discuss strategy with your client.  The strategy will obviously change according to whether a trial was conducted or a guilty plea was entered, since this will ultimately structure the tone of your client’s interview.  The goal is to be forthright but also preserve your client’s legal position should there be post-trial litigation.  All of this highlights that a candid and direct conversation with your client should take place promptly after conviction. 

You should create a checklist of topics to review and prepare for with your client.  What is your client’s story?  How did she/he get here?  Were they set up for failure or did they lose their way?  Are their relationships the cause of the criminal issues or are there positive relationships that can steer this individual in a better direction with proper support?  Also, the circumstances of the crime at issue need to be explored so that the client can address them in a non-adversarial manner that highlights to the officer and the Court that your client is a human being.  Other topics you should review with your client include:

·       Family upbringing and the affect that it had upon the criminal matters at issue

o   Family drug/alcohol addiction issues

·       Education and schooling
·       Healthy hobbies
·       Health in general

o   Counseling
o   Therapists
o   Medications

·       Personal drug/alcohol addiction

o   Treatment needed?
o   Prior treatment?
o   Years of addiction

·       Personal/family status
·       Effect incarceration will have on your client’s family and relationships
·       Financial status

o   It affects the amount of restitution in play
o   The health of the family
o   IRA’s/401Ks

·       Community involvement
·       Religious involvement
·       Ability to reform
·       Goals and aspirations
·       Career change  

Your task is to humanize your client and tell her/his story so that the report captures it and the sentencing judge considers your client’s story.  This becomes a defense attorney’s springboard for making a compelling and impassioned plea for leniency at sentencing.  If the Pre-Sentence Report successfully humanizes your client, it allows counsel to drive home certain themes and arguments that could reduce your client’s sentence.  Thus, it is important to take the time to meet and prepare with your client before the probation officer does, as doing so could benefit your client at sentencing.