Filed Date: 4/6/1983
Status: Precedential
Modified Date: 7/5/2016
REQUESTED BY: Senator Steve Fowler Nebraska State Legislature 1402 State Capitol Lincoln, Nebraska 68509
Dear Senator Fowler:
This is in response to your letter concerning the provisions of LB 78 which is currently before the Legislature. LB 78 requires that the prosecuting attorney in certain cases consult with the victim prior to entering a plea agreement. The proposed legislation would also require that statements of the victim be included in the presentence report.
First, you have asked whether the mandatory inclusion of statements of the victim in the presentence report without affording the defendant the opportunity to cross-examine the victim concerning the statements could constitute a denial of due process. The sentencing judge has broad discretion concerning the evidence that he can consider in imposing a sentence. In fact, the latitude allowed a sentencing judge in such instances is almost without limitation as long as it is relevant to the issue. State v. Porter,
Your second question is whether the statements of a victim included in a presentence report would be discoverable under the rules of civil procedure for use in a subsequent civil trial. As amended by LB 78, §
Any presentence report or psychiatric examination shall be privileged and shall not be disclosed directly or indirectly to anyone other than a judge, probation officers to whom an offender's file is duly transferred, or others entitled by law to receive such information.
The court may permit inspection of the report of examination of parts thereof by the offender or his or her attorney, or other person having a proper interest therein, whenever the court finds it is in the best interest of a particular offender. The court may allow fair opportunity for an offender to provide additional information for the court's consideration.
Under this portion of the act, the contents of the presentence investigation are privileged. It would, therefore, appear that a statement of the victim would not be discoverable for use in a subsequent civil action under the discovery rules promulgated by the Nebraska Supreme Court. Rule 26(b)(1). However, the release of such information is left to the trial court's discretion, and in a proper situation the trial court may allow the offender to inspect the report. Hence, the offender might have an opportunity to be aware of the statements made by the victim and their contents.
Your final question is whether the restriction placed on plea bargaining and the mandatory inclusion of statements by the victim in the presentence report violate the separation of powers doctrine. Section 2 of LB 78 requires that the county attorney consult with the victim of specified crimes prior to reaching a plea agreement. This does not place any restrictions on the county attorney's ability to exercise his discretion. The county attorney, in his discretion, may enter a plea agreement on terms he considers appropriate, after the required consultation with the victim, even though such action might be contrary to the victim's wishes. The same is true of Section 3 of LB 78 in regard to prosecutions of a violation of a city or village ordinance enacted in conformance with §
Very truly yours, PAUL L. DOUGLAS Attorney General Sharon M. Lindgren Assistant Attorney General