Wednesday, June 19, 2024

The necessity of pre-sentence reports at criminal trials

One of the primary functions of a Forensic Criminologist is the preparation of pre-sentence reports for courts. These reports are presented to the court after the offender has been found guilty, but before the offender is sentenced. Pre-Sentence reports contain the results of a Criminological Investigation, Evaluation and Assessment of the offender by a Criminologist. It looks into the causes, motives, contributing factors, triggers, victimology, aggravating and mitigating factors, and should as well include an assessment of the offender’s background and personality. Ideally the report should offer suggestions on the management and prognosis of rehabilitation of the subject of the report and identify skills and programs that would be of benefit to the offender in question.

The report may also offer a prediction of future dangerousness and alert prison officials to the danger certain inmates may pose to others and to staff. This report must accompany the offender to prison where it can be used by correctional services to prepare a sentence plan for the offender. These reports may also be of use to the law enforcement as they identify and highlight crime trends in communities and individual motives.

PURPOSE OF PRE-SENTENCE REPORTS

The principal purpose of a pre-sentence report is to aid the presiding officer in acquiring an enhanced understanding of the offender before the court. This should include their reasons for the committal of the crime in question. Often the courts, especially in cases where the offender has pleaded guilty to the crime, find themselves having to sentence offenders about whom they know very little, because, there has been no trial, where important facts about the offender could have surfaced. However experts in the field of human and criminal behaviour can be of immense assistance in determining a just individualised sentence, in most criminal cases. Terblanche points out that, “a pre-sentence report should be obtained whenever the presiding officer feels the need to be better informed about the character and possible future of the offender”. These reports in my opinion should be mandatory when sentencing juvenile, sex, violent and serial offenders. The pre-sentence report should provide the sentencing court with concise and accurate information about the offender on which they can base a judicious sentencing decision. The greatest benefit of the pre-sentence report lies in the area of offender individualisation and the option of disposal alternatives. Additionally the report serves as a basis for the continuing treatment, development and rehabilitation of the offender once incarcerated. The criminologist should prepare his report with this in mind.

The point of a pre-sentence report is not to find excuses for the offender in order to try and bring about the lightest possible sentence, but conversely, to present the court with a detailed portrait of the offender as a human being. The more comprehensive the picture of the person before the court is, the better the court is positioned to determine a suitable individualised sentence. To this end Criminologists must furnish the court with a detailed report of the social and personal history of the offender, future criminal potential, mental and physical deviations and other relevant matters.

ROLE AND FUNCTION OF PRE-SENTENCE REPORTS

After a guilty verdict is pronounced, the judicial officer is confronted with formulating the most appropriate and most effective sentence to impose on the accused. Effective Sentencing is a human process which requires knowledge of human behaviour and most especially criminal behaviour with all its complexities. Criminologists are unique in that they study the social sciences and the law and then specialise in the study of crime and criminal behaviour. They can thus play a significant role in changing sentencing from an intuitive and largely subjective act into a rational and objective one.

The chief function of the pre-sentence report is to serve as an indispensable sentencing tool for the court. It is the only external sentencing aid that is objective, practical, readily available and frequently used by the courts in disposing of offenders. To this end it is important that criminologists compiling these reports are not beholden to the client or the person paying the account. The criminologists duty is ultimately to the court, and in my opinion, objectivity is critical if the report is to carry any weight at all with the sentencing court. An objective report should be balanced and of equal value and assistance to both the State and the Defence.

Unfortunately in court it is often clear that expert witness testimony is biased in favour of the client, resulting in the report losing probative value. Precautions should always be taken by the author of the report to ensure this does not occur.

When the report gets to the prison, it can serve as a vital source of information for the Case Management Committee (CMC) or case worker assigned to the offender at the Correctional Centre. It can be used in devising a treatment plan and to conduct a risk assessment of the offender. Without it, the case worker has to collect data on the offender which could have been captured in the pre-sentencing phase.

When the offender is considered for parole the pre-sentence report is also useful in the preparation of a parole report when early release is being considered. Most of the information needed for determining the success of early release should be contained in the report. When an offender is received by a correctional centre without a pre-sentence report, the only information available to Department of Correctional Services is the list of previous convictions which only contains the crime for which the offender has been sentenced. This makes individualized assessment difficult. An available pre-sentence report supplies the Parole Board with all the information available surrounding the crime and the offender assisting it in making an informed decision regarding the progress of the offender’s rehabilitation.

Pre-Sentence reports often contain the details of the victim or victims of the crime concerned and as such, the Correctional Service Institutions can use the report when considering the early release of offenders. This allows for the best interests of the victim and the community to be assessed. The contact information of the victim in the report may assist officials in contacting victims and allowing them a say in the release consideration. The leading stumbling block in the implementation of restorative justice in Correctional Services is the lack of information. It is difficult and expensive to try to trace victims of crime and their families , and often they are never found years later when the offender is considered for parole. By providing this information the pre-sentence report facilitates the initiative of restoration within the correctional facility, the parties on both sides can be brought into the restorative justice process.

REQUIREMENTS FOR A CRIMINOLOGICAL EVALUATION REPORT.

The pre-sentence report should assist the court by scientifically presenting the offender and his circumstances to the court, providing a basis for the criminologists sentence recommendation and the final decision of the court concerning the sentence to be imposed.

Pre-sentence reports contain information which is usually irrelevant when determining the guilt or innocence of the accused. After the verdict, this very information often assists the court to understand the personality, circumstances and character of the offender as an individual before the court. The report highlights the offender’s problems and needs and the social environment of the offender is illustrated. Critically, the criminologist is the only expert within the various fields of experts who testify in court,(including social workers, psychologists, probation officers and others) that can identify, assess and explain the probable fundamental causes for the commission of the particular crime.

The forensic criminologist must approach each case with the utmost caution when compiling this report. The pre-sentencing evaluation ought to be of such a nature that a complete profile of the offender is presented to the court. Due weight has to be given to the personal circumstances of the offender right through the sentencing process in addition to criminogenic factors contributing to the crime.

In order to highlight the offender as a person, it is necessary to concentrate on the offender’s personality and character, psychological and emotional problems and needs, social context, including the family life, employment situation, neighbourhood, recreation and relationships. The report should additionally address the impact of the event on the individual and the extent to which the offender has been affected by his own actions. It explains criminal event before the court from both a theoretical and criminological perspective.

Expert witnesses should always make sure that they are thoroughly prepared when they appear in court. They should be aware of details of the crime, such as the exact charge, relevant details of the crime and other relevant information, such as medical or psychological reports. Vagueness, uncertainty and confusion, damage the credibility of experts witnesses in court. This was highlighted recently in the testimony presented by experts who appeared in the Pistorius case who arrived at court with either no formal report or one that was poorly prepared. The problem here is that you run the risk of severely damaging your professional reputation and your credibility. Criminologists and in fact all expert witnesses should be able to scientifically substantiate their assumptions or statements about the accused and the crime. It is important that you restrict your testimony to the ambit of your expertise and never cross into areas about which you are not qualified to testify. The criminologist should be able to justify the sentence recommendation made in the report clearly. Mitigating and aggravating factors must be taken into consideration, such as age, health, attitude, circumstances, motivation and previous criminal record. All the information must be presented in a clear and concise manner.

VALUE OF THE PRE-SENTENCE REPORT

When people have been accused of committing a crime, considerable attention is paid to determining their guilt or innocence. The sentencing phase is more rapid and concludes with usually only a few witnesses. The pre-sentence report, if correctly compiled and properly presented, allows all parties to put relevant information before the court in order to assist it coming to a just decision. Graser states that: “Not only do South African judges and magistrates receive very little training in the “art” of sentencing, they also receive minimal, if any, training in the social sciences. Because sentencing is a human process, with implicit predictions about outcomes of sentences (in terms of the objectives of punishment), it requires a knowledge of human dynamics. That is, in order to pass a sentence that is likely to protect the community, render the offender less violent or less devious, deter offenders and potential offenders and bring about positive changes in the offender’s attitudes and behavioural patterns, judicial officers have to have a knowledge of human social dynamics. To that end they also require knowledge of relevant aspects of certain social sciences, particularly criminology”. This statement in my opinion would apply equally in Botswana.

The training of Judges and magistrates in Botswana does not include aspects such as human motivation, risk factors associated with crime and delinquency, crime prevention, rehabilitation and theories of punishment. Thus, in order to determine a rational and effective sentence that will achieve both the main aims of punishment and be beneficial to the community, the victim and offender, the skills of criminologists and penologists are required by courts.

It is essential to remember that the final decision in the sentencing of offenders is made by the presiding officer alone. The criminologist makes only a recommendation to the court regarding the form of punishment thought to best suit the individual offender. Experienced judges and magistrates view pre-sentence reports as a valuable tool to be taken into consideration in the determination of a fair and practical sentence.

Expert Profiling contactable on Tel: 390 9957 email – [email protected] or [email protected] or on Twitter @LauriePieters which is ideally placed to assist.

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