Can a Court speak ex parte with a probation officer?

The First Circuit recently ruled there was no plain error in a judge “engaging in brief, off-the-record conversations with a probation officer during the [defendant’s] sentencing.”

The opinion made two conclusions:

  1. A probation officer is an extension of the court and functions as an arm of the court, thus a probation officer fundamentally differs from a third party.
  2. An ex parte conversation may seek advice or analysis from the probation officer, but a judge cannot rely on new facts for sentencing unless and until they are disclosed to the parties and subjected to adversarial testing.

Unfortunately, the Court did not give much guidance on analysis vs. new facts. Instead, finding the contents of the ex parte conversations were unknown as a direct result of the defendant’s failure to object. Nor did the Court find anything in the record to suggest new facts were disclosed during the ex parte conversations.

The Court’s opinion does indicate possible constitutional tension between an ex parte conversation with a probation officer and a defendant’s right to a meaningful opportunity to comment on factual information on which his or her sentence is based. The First Circuit cites a previous instance where a sentence was vacated based on a probation officer revealing information to the judge without disclosing it to the defendant (Opinion here).

The problem with the Court’s analysis/advice versus new facts distinction is that it simultaneously acknowledges potential due process violations while failing to safeguard against them. Hopefully defense attorneys will start lodging objections to the practice of ex parte conversations with probation officers, so that a record will exist for the appellate courts to flesh out more detailed guidance on this practice.

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