by the late Mark Sullivan, Board Certified Criminal Defense Attorney, Palm Springs, California. Originally printed in 2003 and reprinted with permission from Crime, Justice and America magazine
PERSONAL HISTORY
One of the ways the PO will get to know you is through the interview. Preferably, though, the PO will already know a considerable amount about you from the documentation you’ve supplied: information about life or work history, positive accomplishments in school or in the military or in the community.
If you helped remove graffiti from walls ten years ago, don’t just tell the PO about it: Figure out a way to document it. If there’s no paperwork available, find the person who supervised the job and ask him or her to give you a typewritten letter, including that person’s name, address and phone number for verification.
If you’ve ever received a written commendation at work, provide a copy. Get another copy from your employer if necessary. Provide proof that you were employee of the month, even if it’s the only month you were so recognized. Provide other employment records, tax returns to show how long you’ve been gainfully employed and paying taxes and supporting yourself and your family, diplomas, awards, letters of commendation, and so on. If you were awarded a medal in the military, bring the medal itself to the probation office, along with a picture of it to go in the report. Obtain a letter from your bank saying you have a good account and you don’t bounce checks. If the victim of your crime happens to be an acquaintance of yours, and has ever sent you a nice letter, have it available.
Any positive documentation should be presented to the PO. Provide supportive letters from neighbors, friends, etc. Show membership records of any fraternal organization (Elks, Rotary, etc.) to demonstrate your service to the community. If there was ever an item in the newspaper about you, bring it in. Make sure that your investigator or outside contact knows how to make use of local libraries and the Internet.
Anything you provide might be useful. The more positive material the PO has, to counter the information he or she is looking at in the DA’s report, the better chance you have of making a good first impression. Remember that you never get a second chance to make a good first impression, and that the attitude of the PO before the start of the interview will probably dictate the direction of the report and recommendation.
SUBSTANCE USE
If you’ve ever been treated for an addiction or abuse problem, and you completed the program, provide proof to the probation officer to demonstrate that you’ve benefited from that type of program (as opposed to jail or other punishment.)
If you’ve never been treated, and you’re prepared to admit to an addiction to drugs, alcohol, sex or gambling (or any other addictive, self-destructive behavior), show the PO that you’ve already inquired about how to deal effectively with the problem. Provide documentation (names, addresses, other information) about those programs.
Obviously, if you’re in jail and such a program is available to you, go ahead and attend. Then show proof of regular attendance. Be sure you’re prepared to discuss with the PO what you’ve learned at the meetings.
If you’re out of custody, Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) meetings are relatively easy to fine. Just look in the Yellow Pages, find out where the meetings are held, and show up. Be sure to ask for a court card, a card that is signed by the meeting’s director and is designed to show proof of your attendance. Attendance at AA and NA never hurts, especially if there is any indication that you need it. And if you need a treatment program, speak to your attorney. Programs come in all ranges of cost and effectiveness. Some are looked upon highly by the court — others, not so: The courts usually feel that the more expensive the program, the easier it is to complete, and the less beneficial it is to the patient.
Even if you aren’t charged with a substance abuse crime, and there’s no indication that substance abuse played any part in its commission, every probation report is going to deal with your history of substance use. If you don’t know how to answer these questions in a way that will best suit your case, ask your attorney and he or she will advise you. You always have a right to present the truth in a light most favorable to you.
DO NOT BE EVASIVE – ANSWER THE QUESTIONS
PO’s are experienced interviewers and they deal with criminals every day. You can rarely bluff a probation officer effectively. Try to answer all of the questions, and show that you’re giving it your best effort.
One time a client of mine was clearly being evasive when the PO asked him about any past use of marijuana. He was not prepared for the question, and refused to be specific. He just kept waffling, so the PO asked him detailed questions: “When did you first smoke it?” The client responded, “Age 17.” She then asked him when he’d most recently smoked it. The client responded
“About age 32.” So with nothing more than that from the client, the PO wrote that the defendant started smoking marijuana at the age of 17 and stopped smoking it at age 32. That sounded terrible.
It would have been much better if the client had been prepared for the question, and had been more specific. He could have responded, truthfully and more positively (for example), that he’d experimented with marijuana about eight or nine times over the course of 15 years. Better yet, he could have said that he vividly remembers the day that he decided never to do illegal drugs ever again. It was January 30th, 1996, and he quit because he embarrassed his son in front of his friends at a football game. “It was one of the most significant days in my life”, he might have said, “No more drugs for me, never again after that day.” For you, maybe it’s the day you were arrested for this offense. “The first day of the rest of my life. I learned my lesson, and benefited from it.” That type of stuff impresses PO’s.
DEFENDANT’S STATEMENT
Sometimes you will be instructed to write out in longhand your own version of the events. Some PO’s ask you to tell it in your own words at the time of the interview.
One rule holds in almost all cases: ADMIT IT!
Believe it or not, the court and the PO would rather have you admit to the crime than make them wonder whether an innocent person has been wrongfully convicted. The judge doesn’t want to see someone from whom he took a guilty plea saying, in effect, “Your judicial system is flawed. I was forced into pleading guilty. My lawyer coerced me. The cops are all lying. I was railroaded by the prosecutor. You’re going to sentence an innocent person.”
As long as you didn’t testify otherwise at trial, you should admit the conduct and try your best to mitigate it: give it the best possible spin, to make it sound either somewhat justified or less severe. The judge wants to hear, “I admit that. I did it, and I’m sorry. The system works. It feels better to get it out in the open. Confession is good for my soul. I respect the system that you as a judge (or a probation officer) represent. I acknowledge your authority to sentence me because I’m guilty. But, what I did is out of character for me, and here’s why you should give me the benefit of a second chance.”
And you have to show remorse. Even if the victim is your most hated enemy, swallow hard and express your sorrow that he or she had to suffer. Acknowledge that the victim has been injured and has been inconvenienced by having to come to court and deal with the system After all, you’re the one who got caught. You’re the criminal, and he or she is the victim. It can be tough, but it’s in your best interest. You’re going to get a lighter sentence if you can manage to get the words and the emotions out. Remember the old line, “Sincerity is essential. If you can fake that, you’ve got it made.”
Don’t make the same mistake most defendants make, talking about how the criminal case has affected you. Don’t say, “I’ve embarrassed and hurt my family, my friends, my employer, etc.” Avoid the “my” word. Don’t talk about yourself, talk about the victim.
Admitting your criminal conduct will show the probation officer that you are mature and that you take responsibility for your acts. Those are the qualities of a good candidate for probation. Absent unusual circumstances, almost no one who remains in a state of denial ever gets probation.
And be sure to stress that if and when you get a grant of probation, the very first things you are going to do is to make restitution to the victim, and pay your fines. Show the PO that you feel genuine sorrow and remorse for the victim.
MITIGATION
On the other hand, you need to be able to discuss the unique factors in your life, which caused you to act in the way you did. If you find yourself discussing the responsibility of someone else (such as a parent), be sure to do so without seeming to make excuses, or appearing to shift the blame. Let’s say you wanted to convince the PO (and therefore, the judge) that your problem stemmed from a bad upbringing. In that case, a good attitude to express would be something like, “Well, my upbringing wasn’t very good because this happened and that happened. This is no bad reflection on my parents, they did the best they could, and they are ordinarily very good people and good role models. I’m sorry that I disappointed them, but they made mistakes with my situation. At least now I know not to make the same mistakes with my own kids.”
Even a co-defendant’s involvement should be treated this way: “He’s not a bad person, but when we got together, we both did things that were out of character for us. But, it was his idea to do this and this, and he did this on his own. I only assisted him, etc.”
REAL LIFE DO’S AND DON’TS
When expressing remorse, be careful not to lay it on too thick. Don’t make the same mistake one defendant made when he tried too so hard to impress the PO with his remorse. He was apparently a lousy actor, and he slumped in his chair, held his head in his hands and kept, “Oh, a 46-year-old man and a 16-year old girl! A 46-year old man, and a 16-year-old girl! Oh, I’m so ashamed.” Without actually writing in the report that this sounded phony to her, the PO described in her report exactly what she saw him do and say, and the judge got the point. He saw that the client was being overly dramatic and, therefore, insincere.
One of my clients, however, came off as very distraught, and it paid off for him: He had admitted engaging in inappropriate conduct with his 12 year-old daughter one evening when he was very drunk. It was the one and only blemish in his otherwise perfect record, and he expressed his sorrow and shame in a way that had a ring of truth to it. When he was asked what kind of sentence he thought would be appropriate, he responded, “The maximum, whatever that is. I don’t know, the death penalty? Am I eligible for that?”
The PO was blown away, and was so convinced of his genuine remorse, she recommended a grant of probation and no jail time. It’s a bit of a high-risk answer, though. Remember the old saying, “Be careful what you ask for. You may just get it.”
ENDING THE INTERVIEW
When the interview ends, look the PO in the eye and thank him or her for doing a very thorough job. Say that you look forward to seeing the final report. Say that you’re sorry to have created all of this work for him or her, what with all the documents you have had people bring in.
Of course, you’re not sorry – You did your job, and you helped yourself. And you made the PO look like a superstar in the eyes of his or her supervisor — and in the eyes of the judge. They will look at the thickness of the report and believe that it was the PO who did an incredibly thorough investigation, when in fact it was you all along. You: The model probationer
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