§706-604 - Opportunity to be heard with respect to sentence; notice of pre-sentence report; opportunity to controvert or supplement; transmission of report to department.

§706-604  Opportunity to be heard with
respect to sentence; notice of pre-sentence report; opportunity to controvert
or supplement; transmission of report to department.  (1)  Before imposing
sentence, the court shall afford a fair opportunity to the defendant to be
heard on the issue of the defendant's disposition.

(2)  The court shall furnish to the defendant
or the defendant's counsel and to the prosecuting attorney a copy of the report
of any pre-sentence diagnosis or psychological, psychiatric, or other medical
examination and afford fair opportunity, if the defendant or the prosecuting
attorney so requests, to controvert or supplement them.  The court shall amend
or order the amendment of the report upon finding that any correction,
modification, or addition is needed and, where appropriate, shall require the
prompt preparation of an amended report in which material required to be
deleted is completely removed or other amendments, including additions, are
made.

(3)  In all circuit court cases, the court
shall afford a fair opportunity to the victim to be heard on the issue of the
defendant's disposition, before imposing sentence.  The court, service center,
or agency personnel who prepare the pre-sentence diagnosis and report shall
inform the victim of the sentencing date and of the victim's opportunity to be
heard.  In the case of a homicide or where the victim is otherwise unable to
appear at the sentencing hearing, the victim's family shall be afforded the
fair opportunity to be heard.

(4)  If the defendant is sentenced to
imprisonment, a copy of the report of any pre-sentence diagnosis or
psychological, psychiatric, or other medical examination, which shall
incorporate any amendments ordered by the court, shall be transmitted
immediately to the department of public safety. [L 1972, c 9, pt of §1; am L
1986, c 314, §13; am L 1987, c 338, §10; am L 1988, c 305, §10; am L 1989, c
211, §8; gen ch 1992; am L 1993, c 216, §1; am L 2006, c 230, §16]

COMMENTARY ON §706-604

  Subsection (1) is a restatement of the existing rule of
procedure[1] and practice.

  Subsection (2) is addressed to one of the most troublesome
problems in the area of pre-sentence investigation: the question of whether the
pre-sentence investigation report should be disclosed to the defendant.  The
right of the defendant to controvert the pre-sentence report is meaningless to
the extent that the report, or a part thereof, is not made available to the
defendant.

  The Model Sentencing Act allows the court discretion in
making the pre-sentence report available in ordinary felony cases, but with
respect to murderers and dangerous offenders the report is made available in
its entirety.  The Act further provides that "Subject to the control of
the court, the defendant shall be entitled to cross-examine those who have
rendered reports to the court."[2]

  The Model Penal Code provides that "the Court shall
advise the defendant or his counsel of the factual contents and the conclusions
of any pre-sentence investigation or psychiatric examination and afford fair
opportunity, if the defendant so requests, to controvert them.  The sources of
confidential information need not, however, be disclosed."[3]

  The applicable Hawaii rule of criminal procedure takes the
same position as the Model Penal Code.  It reads:

The court
shall upon request seasonably made disclose the information contained in the
report to the prosecution or to the defendant's attorney or the defendant
without disclosing any source of information which was received in confidence,
and in such event the court shall make the same disclosure to the other
party.[4]

  The right to controvert is meaningless unless the report
itself, rather than the factual contents and conclusions, is made available to
the defendant.  Even more ludicrous would be the insertion into the report of
information the source of which is regarded as confidential.  The defendant,
under such circumstances could not be expected to controvert such information
by showing, for example, that the source was unreliable or biased.  The
question of whether the defendant should be sentenced to imprisonment or to
probation is no less significant than the question of guilt and the defendant
should not have this decision made on the basis of information which the
defendant is not allowed an opportunity to challenge.

  The A.B.A. Standards have, for the most part, accepted this
approach.[5]  In rejecting the M.S.A. and M.P.C. positions, the commentary to
the A.B.A. Standards states:

The view
which is reflected in subsection (b) [of 4.4] is based upon both an assessment
of the values which are served by non-disclosure and a balance of these values
against basic fairness to the defendant.  Specifically, the argument that
sources of information will dry up if the defendant's attorney is permitted to
examine the report falters on two grounds.

The first is
based on the experience of those members of the Committee who have lived under
a system in which disclosure is routine, and is supplemented by the Committee's
examination of sample reports produced under such a system.  The conclusion is
that there is little factual basis for the fear that information will become
unavailable if the report is disclosed.  The quality and value of a
pre-sentence report will turn to an infinitely greater extent on the skill of
the probation service and the availability of adequate supporting facilities
than it will on whether its contents remain a secret....

The second
reason is more fundamental.  One of the basic values underlying the manner in
which the guilt phase of a criminal case proceeds is that the defendant is
entitled to know the details of the charge against him and is entitled to an
opportunity to respond.  It is believed that this value is subverted by a
system which does not require disclosure of the information contained in the
pre-sentence report.[6]

  The Code takes the position that full disclosure is necessary
to protect the defendant and the court from inaccuracies which secret reports
breed.  Anything less than full disclosure is inconsistent with the
truth-seeking function of the judicial process and the rehabilitative function
of penal sentences.  "Long since exploded is the theory that a defendant
who has been convicted of crime no longer has any rights, or that any sentence less
than the maximum is the result of an act of grace."[7]

  The A.B.A. Standards include the following provision for
nondisclosure in certain "extraordinary cases":

In
extraordinary cases, the court should be permitted to except from disclosure
parts of the report which are not relevant to a proper sentence, diagnostic
opinion which might seriously disrupt a program of rehabilitation, or sources
of information which has been obtained on a promise of confidentiality.  In all
cases where parts of the report are not disclosed under such authority, the
court should be required to state for the record the reasons for its action and
to inform the defendant and his attorney that information has not been
disclosed.  The action of the court in excepting information from disclosure
should be subject to appellate review.[8]

  The Code rejects this exception, even in its limited form. 
The Code takes the position that it would be better to delete such information
from the pre-sentence report--information which by its very nature is
questionable because of its secrecy--than to allow the information to be
included in the report and not be made available to the defendant.  Although
not dealt with specifically in the A.B.A. Standards, the decision to except a
part of the pre-sentence report from disclosure would be essentially an ex
parte proceeding, thus further excluding the defendant from participation in
the resolution of issues which affect the defendant's rights.  The entire
exception, and its attendant procedure, seems at best to be a compromise
solution on the part of A.B.A.'s Advisory Committee whose commentary reads in
part:

By endorsing a
general policy in favor of disclosure, by making non-disclosure of specific
items a burdensome task to be justified as an exception, and by providing for
review to determine whether non-disclosure was justified, the majority believes
that the danger will be minimized, but that an outlet will be available to
accommodate justifiable fears in particular cases.  In a very few cases, this position
will result in disclosure of information which the advocates of secrecy would
prefer not to disclose.  Such is the price of a system which derives value from
the fairness with which it operates.[9]

  In Honolulu a copy of the pre-sentence investigation report
when ordered by the court is routinely furnished to defense counsel.  It does
not appear from current practice that the untoward results feared by the
advocates of secrecy result from full disclosure.  Furthermore, the Office of
Adult Probation, as a matter of administrative practice, excepts from its
reports information given by an informant who seeks to remain anonymous.  Even
when the probation authorities were charged with investigating custody matters
in domestic relations cases, a practice which no longer obtains, they refrained
from this utilization of confidential information.  The actual procedure in Hawaii appears to be more advanced than its laws in this area.  The Code brings the law
into step with current practice.

SUPPLEMENTAL COMMENTARY ON §706-604

  Act 305, Session Laws 1988, included licensed psychologists
among the professionals which may provide offender examination services to the Hawaii criminal justice system.  The legislature stated that the present laws, which permit
only psychiatric evaluation, are inconsistent with the many and varied uses the
court has found for the services of licensed psychologists.  Senate Standing
Committee Report No. 2153.

  Act 216, Session Laws 1993, amended this section to afford a
fair opportunity to a victim, or in certain cases, the victim's family, to be
heard on the issue of the defendant's disposition before sentence is imposed. 
The legislature anticipated that, in those instances in which the victim or
family may be unable to personally attend a hearing, the court would accept and
consider written statements for the purpose of allowing an opportunity to be
heard.  Conference Committee Report No. 60.

  Act 230, Session Laws 2006, amended this section to require
the court to amend an examiner's report upon finding that any correction,
modification, or addition is needed.  House Standing Committee Report No.
665-06.

Case Notes

  This is a companion provision to §706-602, and affords
defendant opportunity to controvert or supplement the report.  56 H. 75, 527
P.2d 1269 (1974).

  Error to refuse defendant an opportunity to be heard and to
supplement pre-sentence report.  56 H. 292, 535 P.2d 127.

  Court is not restricted to the information in the
pre-sentence report in considering the sentence to be imposed.  59 H. 1, 575
P.2d 448.

  Defendants have no right to examine probation officer's
sentencing recommendation.  67 H. 408, 689 P.2d 754.

  A sentencing court must afford a defendant his or her right
of presentence allocution before ruling on the applicability of the young adult
defendants statute.  90 H. 280, 978 P.2d 718.

  Denial of a fair opportunity to be heard on a defendant's
disposition before imposing sentence violated clear mandate of subsection (1)
and HRPP rule 32(a); misdemeanors and violations fell within scope of
subsection (1).  77 H. 241 (App.), 883 P.2d 663.

  Where defendant was not sentenced to imprisonment, court did
not abuse discretion in denying defendant's request to examine adult probation
officer regarding presentence report.  83 H. 280 (App.), 925 P.2d 1104.

  Cited:  60 H. 100, 588 P.2d 409.

__________

§706-604 Commentary:

1.  H.R.Cr.P., Rule 32(a) (1960).

2.  M.S.A. §4.

3.  M.P.C. §7.07(5).

4.  H.R.Cr.P. Rule 32(c)(3) (1960).

5.  A.B.A. Standards §4.4.

6.  A.B.A. Standards, comments at 219-220.

7.  Id. at 221.

8.  Id. §4.4(b) (in part).

9.  Id. comments at 225.