PSI – Pre-Sentence Investigation in Indiana

After a defendant is found guilty, the court will hold a sentencing hearing to determine the appropriate punishment. Beyond mandatory minimums, judges may consider a pre-sentence investigation (PSI) report, especially in felony cases. Indiana courts generally require a PSI when a felony conviction could result in Department of Corrections time, an open sentencing term, or a Level 5 felony or higher. An experienced Indianapolis criminal defense attorney can help defendants understand how a PSI may impact their sentencing outcome.

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What Is a PSI?

A pre-sentence investigation report came about during a transition to evidence-based practices for sentencing. Evidence based practiced was implemented to guide judges in determining what sentences are appropriate for each individual defendant and to help decide whether or not a given plea agreement is fair given the circumstances. After all, each defendant should be treated fairly and uniquely given the circumstances. Furthermore, the PSI was implemented to consider mitigating or extenuating circumstances to determine whether those factors will play a vital role in ameliorating and/or increasing a defendant’s sentence.

According to the Indiana Court of Appeals, “the purpose of a pre-sentence report is to assist the judge in individualized sentencing and probation officers have a great deal of freedom in determining what to include in the report, although the report must contain only accurate information.” Yates v. State, 429 N.E.2d 992 (Ind. Ct. App. 1982). The Indiana Code § 35-38-1-8 provides:

• Except as provided in subsection (c), a defendant convicted of a felony may not be sentenced before a written pre-sentence report is prepared by a probation officer and considered by the sentencing court. Delay of sentence until a pre-sentence report is prepared does not constitute an indefinite postponement or suspension of sentednce.
• A victim present at sentencing in a felony or misdemeanor case shall be advised by the court of a victim’s right to make a statement concerning the crime and the sentence.
• A court may sentence a person convicted of a Level 6 felony without considering a written presentence report prepared by a probation officer.

How Are PSI’s Prepared?

Before a defendant is officially sentenced, and often after the guilty plea, the judge will order the defendant to report to probation for preparation of the report. This report is conducted by an assigned probation officer, who plays an integral part in determining sentencing. The probation officer collects all the pertinent information, evaluates and interprets the information to adequately present to the court upon the hearing. Why does the probation officer have primary control over this and not the defendant’s attorney? When a defendant is released, they have their assigned probation officer that they must report to on a consistent basis. This report allows the probation officer to observe any risk that will be associated with the defendant. However, the attorney can also seek to object to the sentencing report if it is deemed inaccurate or unfair – that is why it is called a sentencing hearing. Further, “it is a reversible error for failure to present a report.” Hinton v. State, 397 N.E.2d 282 (Ind. Ct. App. 1979). Reversible error means that an appellate court can reverse the trial court’s holding to compel them to consider a pre-sentence investigation report.

What Should Be Included in the Report?

Now that we have made it over the hurdle of understanding the legal term, we can now discuss the pertinent information that should be included in the report. A few conventional factors that should be included are:

• Family history
• Educational background
• Financial information
• The willingness of the defendant to take ownership of the criminal act
• Prior criminal history
• Community involvement
• Employment history
• Physical and emotional health
• Any prior substance abuse (alcohol or drugs)

The foregoing factors are vitally significant to determine whether the defendant will get an extremely tough penalty or a milder penalty. Any good criminal defense attorney will discuss the PSI with their client. There is real strategy in how questions are answered — and in fact, an attorney may instruct their client not to answer certain questions as well. The most important thing is that the defendant is courteous and respectful to the probation officer. They are the key to the outcome. Why? Because they will recommend to the judge what to do in the sentencing. Thus, if they like you, they will ask the judge to accept the plea or be lenient. The inverse is true as well…

As anyone can see, the PSI is a crucial instrument in any criminal sentencing. You and your lawyer should have long conversations about how best to handle the questions. Too many times we have seen sentencing hearings crumble by the actions of a defendant and their lawyer in the PSI stage. Don’t make that mistake. Give the experienced Indianapolis criminal defense attorneys at Banks & Brower a call today. Call us 24/7 at (317) 870-0019 or contact us by our form.

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Frequently Asked Questions

Who Conducts a Pre-Sentence Investigation in Indiana?

A probation officer conducts the investigation and prepares the written report the court reviews before sentencing. Under Indiana Code 35-38-1-8, a defendant convicted of a felony may not be sentenced until a probation officer completes this report and the sentencing court considers it, and courts retain discretion to bypass the requirement only for a Level 6 felony conviction. Banks & Brower works closely with clients throughout this stage, since the information a probation officer gathers can shape the sentence a judge ultimately imposes. 

What Questions Are Asked During a Pre-Sentence Investigation?

The report covers the offense itself, the defendant’s personal background, and the impact on any victim. Indiana Code 35-38-1-9 directs probation officers to gather information about the circumstances of the offense, the defendant’s history of delinquency or criminal conduct, social history, employment, family situation, economic status, education, and personal habits. The investigation also documents how the crime affected the victim and notes whether the defendant holds a professional license or teaching certification connected to the conviction. These four statutory categories give the probation officer a full picture of the defendant and the offense before making a sentencing recommendation to the court.

Can You Challenge or Correct Information in a Pre-Sentence Investigation Report?

Yes, a defendant and defense counsel can object to inaccurate information before the court relies on the report at sentencing. Because the probation officer gathers details from multiple sources, errors can appear in the final document. Indiana Code 35-38-1-9 requires the probation officer to certify whether a victim was contacted and whether that victim was offered the chance to submit a written or oral statement, which creates a documented record defense counsel can review closely for accuracy. Raising objections before the sentencing hearing gives the court a chance to correct the record rather than sentence a defendant based on flawed information.

How Can a Criminal Defense Attorney Help During the Pre-Sentence Investigation Process?

An experienced attorney prepares a defendant for the probation officer interview and reviews the finished report line by line for accuracy before sentencing. The questions asked during that interview can cover sensitive territory, and how a defendant responds often shapes the sentencing recommendation that ultimately reaches the judge. Banks & Brower guides clients through what to expect, helps identify which topics deserve a careful answer, and checks every section of the completed report once it is filed with the court.