If any attorneys did not realize that State v. Greve, 2004 WI 69, 681 N.W.2d 479, was the death knell of the traditional defense-prepared presentence investigation report to supplement or rebut the court-ordered one, the decision in the case at bar should make that clear.
Greve was limited to circumstances involving a successful appeal, a rare circumstance. The case at bar, however, opens up defense-prepared presentence investigations to any use by the State, in any case. Anything a defendant says in such a report can be used against him in a court of law in any case, not just if he ultimately obtains reversal in the case for which the report was prepared.
Until this case was issued, a defense attorney could reasonably conclude that the possibility of a successful appeal was so rare that the potential downside of an independent presentence report was minimal, and outweighed by the potential benefits. However, the potential downside is now immeasurable.
The reality remains, however, that, on occasion, the presentence investigation prepared on order of the court is so horribly biased against the defendant that the defense attorney needs to do more than just orally object to its findings and conclusions.
Nevertheless, if the decision is made to have an independent presentence investigation prepared, it will have to be a truncated report, and both the client and the preparer should be told that discussion of the crime itself, and any other crime, is off-limits. Any exaggerations of the crime, by the victim or the writer of the presentence report, will have to be addressed and refuted by counsel, vis-à-vis the evidence in the record, rather than by the defendant himself.
Ultimately, the Supreme Court could reverse this decision, but, were it to do so, it would require a sea-change in the courts opinion on the public policy concerns voiced by the court of appeals; the decision in Greve itself can be searched in vain for any support for a contrary holding.
The dissent in Greve framed the issue in that case as follows: whether a defendants post-conviction statements, contained in a defendants sentencing memorandum, relating to the offense of which the defendant was convicted, may be used as direct evidence against the defendant in a new trial for the same offense (emphasis added). Greve, 681 N.W.2d at 495.
However, that is the dissent; the majority opinion did not frame the issue that way. Instead, the majority opinion states, A plurality of the court concludes that a defendants conditional right to due process will not be violated by use of his or her sentencing memorandum in a subsequent criminal trial; and the majority concludes that public policy considerations do not support extending a confidentiality requirement to a defendants sentencing memorandum (footnote omitted). Id., at 482.
As a result, any attorney seeking to overturn the holding in the case at bar, in the Supreme Court, has little option but to tackle Greve directly, as incorrectly decided; given the way the issues were framed and decided by the Supreme Court in Greve, the result in the case at bar is the only result consistent with Greve.
– David Ziemer
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David Ziemer can be reached by email.