South Texas College of Law, Annotations (Houston, Tex.), Vol. 8, No. 6, February, 1980 Page: 3 of 8
8 pages : page 11 x 8.5 in. Digitized from 35 mm. microfilm.View a full description of this newspaper.
Extracted Text
The following text was automatically extracted from the image on this page using optical character recognition software:
February 1980 — ANNOTATIONS — Page 3
-patfr loafcfcy,,,
. Yfs. TK6 NifrO
IK}T&fcK>*TltNA?L,*
LAOO PtoFeSSOR
5
C
¿ 9fer
EE TOE'* ViOTEs
W£ ONOeRSrPUb TMrht'S A 7MKM &HAbtíí
Prosecutors Can Contribute
To Pre-Sentence Investigation
Fourth in a Series
by Kevin George
Staff Writer
Harmony should be sought
between the offices of the proba-
tion officer and the district
attorney.
During the pre-sentence in-
vestigation, the probation offi-
cer's attention should concentrate
on the facts of the case and the
degree of the defendant's par-
ticipation in the offense. Then if
any mitigating facts are dis-
covered that suggest referral to a
more appropriate agency for dis-
position, they should be made
known to the prosecutor's office.
Unfortunately this is not the
rule.
To illustrate: Of the 602 unused
pre-sentence reports prepared for
fiscal year 1968 in some 13 juris-
dictions studied, 416 or two-thirds
were the result of dismissal or
failure to obtain grand jury
indictment, according to informa-
tion from the probation division of
the administrative Office of U.S.
Courts, 5 Annual Report 1515.
Early pre-sentence investiga-
tion serves a "screening" func-
tion in the criminal process.
Potentially, the early pre-sen-
tence investigation's greatest
contribution to the administration
of justice could be its ability to
influence disposition of an of-
fender without conviction. For
example, the investigation might
reveal that the defendant suffers
from a physical or mental defect
indicating perhaps that further
prosecution would serve neither
society nor the individual. Point-
ing out such circumstances to the
prosecutor enables him, at his
discretion, to give the case to a
more appropriate authority or
dismiss it on its merits. In doing
so, the prosecutor exercises inad-
vertent control over sentencing,
by virtue of his discretionary
power.
As the cost of maintaining an
individual in a penitentiary in-
creases and as the relative merits
of a system of selective prosecu-
tion become more convincing, it
should be more apparent that the
information developed through
early pre-sentence investigation
can and should be utilized in
order to render more appropriate
case disposition. To require a
certain input in this area by the
prosecution would thus empha-
size a position of neutrality. This
would mean that the court in
fashioning appropriate sentences
would expect the prosecutor to
approach his role by informing
the court from a non-adversarial
position.
This seems to be the position
taken by the American Bar
Association when it suggests that
the most important contribution
the prosecutor can make in the
sentencing process is to see that
the information which has been
gathered for his use at trial is
also, to the extent relevant, taken
into account upon the issue of
sentence.
Section 6.2(a) of A.B.A. Stan-
dards: The Prosecution Function
(1978) recommends that the
prosecution disclose favorable as
well as unfavorable information to
assist the court in basing its
sentence on complete and ac-
curate information for use in the
pre-sentence report. "He should
disclose to the court any infor-
mation in the prosecutor's files
relevant to the sentence," the
ABA Professional
Standards
standard suggests.
This would include the duty to
correct inaccurate, adverse, or
incomplete information. More
fundamentally, it involves the
obligation of disclosing any infor-
mation relevant to sentencing,
and it is thus not solely limited to
the information contained in the
pre-sentence report.
The importance of obtaining
pertinent information about an
offender has already been em-
phasized by the U.S. Supreme
Court. In this regard it indicated
that "most of the information now
relied upon by judges to guide
them in the intelligent imposition
of sentences would be unavailable
if information were restricted to
that given in open court by
witnesses subject to cross-
examination." (Williams v. New
York, 337 U.S. 241 [1949]).
The due process clause should
not be treated as a device for
freezing the evidential proce-
dures of sentencing in the mold of
trial procedures. In other words,
essential to the selection of an
appropriate sentence is the con-
sideration of unadjudicated
criminal conduct. To illustrate: A
defendant who chooses to plead
guilty to conspiracy to transport
stolen property in exchange for
dismissal of armed robbery
charges could, nevertheless, be
denied parole because of the
seriousness of the armed robbery
offense. Thus, even though the
prosecutor may exercise his dis-
cretion in the initial charge and
eventual sentence of the offender,
final responsibility for his release
would fall in the hands of the
Continued on page 8
The American Bar Associa-
tion's Commission on Evaluation
of Professional Standards pre-
sented its discussion draft of the
model rules for governing law-
yers' conduct for discussion and
revision at the Association's
midyear meeting in February.
In the January issue of the ABA
Journal Chairman Robert J. Ku-
tak discussed some of the pro-
posed rules which the commission
has been working on for two
years.
"The draft must now be
reviewed, weighed and debated
by every thoughtful member,"
Kutak said. He expects the
ensuing debate to be lively.
"Were it not, I would think we
had failed in our mission, for we
would have avoided the tough
problems."
The discussion draft consists
of two sections, the first of which
is divided into seven parts
concerning "The Practice of
Law." The second section has
three parts concerned with "The
Responsibilities of a Public Pro-
fession/'
THE PRACTICE OF LAW
The new rule on lawyer
competency uses the present code
as a base and has expanded from
there to include standards which
have been established by recent
practical experience acted on
judicially.
Conflicts of interest are spelled
out in a series of "thou shalt
nots" which can be considered a
consensus of the profession's
stand ethically on several situa-
tions which are thought of as
inherent conflicts of interest.
The obligation of duty for the
corporate attorney is a growing
area of concern that is addressed
specifically under the proposed
rules on client-lawyer relation-
ship. The lawyer's responsibility
is seen as one to the organization
and not to any of its individual
parts, i.e. the board of directors,
individual officers or other staff
members.
Gient perjury presents a
unique problem for the advocate.
The proposed rule in criminal
cases recognizes that a lawyer's
duty to the court of complete
candor is qualified by the law's
own definition of due process and
the right to counsel. However,
the attorney's duty is to avoid
falsifying any evidence and this
includes being involved in any
way in perjury.
RESPONSIBILITIES OF
A PUBLIC PROFESSION
Here the proposed code recog-
nizes that each lawyer has a
responsibility to provide free
legal assistance to the poor. The
commission decided that a man-
datory program requiring that a
specific number of hours be given
to such work would not be
advisable for several reasons
The new rule would require
lawyers to report each year how
they have complied with this
duty. It is the belief of the
commission that self-reporting
will "encourage individual contri-
butions of time and skill on a
basis and in amounts that are
most effective under the lawyer's
particular circumstances."
Many people don't know what
legal services are available to
them and what the general cost
will be. The commission's work
in this area is aimed at removing
those barriers that may have kept
people in the dark and insure the
wide spread availability of legal
services.
"The proposed rules are not so
much a penal code for the
profession, although in part they
are," Kutak says, "they are...
Continued on page 8
Pitt Alplja Delta
Usui JTratensHg,
international
Tues. Feb. 19
Thurs. Feb.
Sat. Feb.
Tues. Feb.
Sat. Mar.
Tues. Mar.
Thurs. Mar.
Sat.
Mar. 8
Speaker: Paul Pressler (Russian and
American Systems), 4:30-5:30, Rm. 103
General Meeting, 4:30-5:30, Rm. 112
Spaghetti Fundraiser
Coffee and Donuts, 4:30-5:30, Rm. 316
STCL & UH PAD Casino Rush Party
General Meeting, 4:30-5:30, Rm. 112
Speaker: Charles Foster (Immigration
Law), 4:30-5:30
Initiation, 12:00, Rm. A01
Upcoming Pages
Here’s what’s next.
Search Inside
This issue can be searched. Note: Results may vary based on the legibility of text within the document.
Tools / Downloads
Get a copy of this page or view the extracted text.
Citing and Sharing
Basic information for referencing this web page. We also provide extended guidance on usage rights, references, copying or embedding.
Reference the current page of this Newspaper.
Rice, Elaine. South Texas College of Law, Annotations (Houston, Tex.), Vol. 8, No. 6, February, 1980, newspaper, February 1980; Houston, Texas. (https://texashistory.unt.edu/ark:/67531/metapth144392/m1/3/: accessed April 27, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting South Texas College of Law.