3.6Access to Victim Impact Information

“The victim has the right to submit or make a written or oral impact statement to the probation officer for use by that officer in preparing a presentence investigation report [(PSIR).]” MCL 780.764 (applicable to felony cases). See also MCL 780.792 (providing a victim of a juvenile involved in juvenile proceedings, including designated proceedings, the same right if a presentence report is prepared in anticipation of disposition or sentencing); MCL 780.824 (providing a victim of a misdemeanor the same right if a PSIR is prepared). In all cases, a victim may request that his or her written impact statement be included in the presentence investigation report (PSIR).¹ MCL 771.14(2)(b); MCL 780.764; MCL 780.792(3); MCL 780.824. See also MCL 780.763(1)(c) and MCL 780.823(1)(c) (requiring the prosecuting attorney, upon request, to provide notice to the victim of his or her right “to make a written or oral impact statement for use in the preparation of a presentence investigation report concerning the defendant[]”), and MCL 780.791(2)(a) (requiring the person preparing the report to provide notice in juvenile proceedings).

PSIRs are privileged and cannot be a subject of discovery. See MCL 791.229; Peters v Bay Fresh Start, Inc., 161 Mich App 491, 497-498 (1987) (reversing the trial court “insofar as it held that any of the probation officer’s records or reports were discoverable[]”); Havens v Roberts, 139 Mich App 64, 68 (1984) (“[p]robation officers’ reports are absolutely privileged [under MCL 791.229] and cannot be a subject of discovery[]”). However, where preservation of the confidentiality of PSIRs directly conflicts with the equally protected rights of confrontation and impeachment through prior inconsistent statements, a defendant’s right of cross-examination for impeachment purposes outweighs the state’s interest in the confidentiality of the reports. People v Rohn, 98 Mich App 593, 599-600 (1980), overruled on other grounds by People v Perry, 460 Mich 55 (1999).² Specifically, the Rohn Court provided:

“[W]e must conclude that the need for impeachment of criminal accusations outweighs any need for confidentiality of presentence reports. This does not mean that defendants should receive wholesale access to the confidential records of others. We hold only that when records of prior inconsistent statements of witnesses are necessary for effective cross-examination, they should be made available to the defendant. An in camera inspection procedure should be utilized by the court to limit disclosure to those statements materially inconsistent with the witness’s testimony.” Rohn, 98 Mich at 600.

“The court must provide copies of the presentence report to the prosecutor, and the defendant’s lawyer, or the defendant if not represented by a lawyer, at a reasonable time, but not less than two business days, before the day of sentencing. The prosecutor and the defendant’s lawyer, or the defendant if not represented by a lawyer, may retain a copy of the report or an amended report.”³ MCR 6.425(B). See also MCL 771.14(7), which provides substantially similar requirements except that it includes a waiver provision for the defendant to waive the two-business day requirement; MCR 6.610(G)(1)(b), which provides substantially similar requirements for presentence reports prepared in district court.⁴ For additional information on the inclusion of a victim impact statement in a presentence report and the exclusion of certain content contained in the victim impact statement, see Section 7.2.

Note: The victim must be notified that the PSIR (or presentence report in juvenile designated cases) and his or her impact statement in the report will be made available to the defendant or juvenile and defense counsel unless the court exempts it from disclosure. MCL 780.763(1)(e); MCL 780.791(2)(c); MCL 780.823(1)(e).