On the other hand, it is not intended that facts that were revealed at the trial be excluded, since subsequent users of the report may not have access to the trial record and a description that focuses exclusively on events not in the record might be misleading. Arrests, juvenile dispositions short of an adjudication, and the like can be extremely misleading and damaging if presented to the court as part of a section of the report which deals with past convictions. If such items are included, a special effort should be made to assure that one using the report cannot possibly mistake an arrest for a conviction. Failure in this respect could leave the sentence imposed subject to attack, since it is violative of due process for the trial court to impose a sentence under the mistaken belief that the defendant was guilty of other crimes and the defendant was not represented by counsel. This history refers to information obtained in past examinations and is not to be confused with Rule 26.4, which allows the court to order further mental health examination or diagnostic evaluation.
Judicial discretion is an essential component of fairness in the sentencing process.
Judicial discretion provides the sentencing judge with the flexibility to design sentences based on the individual facts in each case. Fairness can only result from informed sentencing decisions that can be achieved through the use of consistently prepared presentence reports, the review and study of sentences of other judges in similar cases, and consistent application of the principles of sentencing set out in Rule 26.8.