Supreme Judicial Court (July 7, 2005)

If requested by the defendant or her attorney, probation officers must give the defendant's attorney notice and a reasonable opportunity to attend a pre-sentence interview of the defendant.

After a jury returned verdicts of guilty, the judge ordered a pre-sentence investigation and report. The defense attorney and probation officer discussed getting together regarding information the defendant was willing to provide for the investigation. Without notifying the defense attorney, however, a probation officer interviewed the defendant. During the interview, the probation officer requested and the defendant signed releases for privileged and confidential records, which were subsequently attached to the final report to the court. The report also included damaging statements that the defendant made during the interview.

Defense counsel filed motions for the immediate return of the records, to strike the defendant's statements made to the probation officer, and for re-sentencing before a different judge. The defense argued that the statements and records were obtained in violation of the defendant's Fifth and Sixth Amendment rights. The motions were denied.

On appeal, the SJC addressed the issue whether a pre-sentence interview is a "critical stage of the prosecution" for purposes of the Sixth Amendment right to counsel. The court ruled that it is not a critical stage and therefore no right to counsel attaches. The court acknowledged that it is "an important stage" that "has due process implications with respect to a defendant's interest in a fair and even-handed sentencing proceeding." Therefore, "if requested by the defendant or her attorney, probation officers must give the defendant's attorney notice and a reasonable opportunity to attend a pre-sentence interview of the defendant."