(concurring in part, dissenting in part). I concur in the opinion of Justice Levin through section IV and dissent as to section V.
The issue raised in section V is whether or not presentence reports should be made available to defendants and their lawyers prior to sentencing. The question is not confined to juvenile records, but includes them.
*5771.
The issue in section V is not before the Court and, not having been raised by either party, has not been briefed or argued. The discussion is not essential to the decision reached.
Section V addresses itself to a highly limiting although imprecise proposed court rule. The general result would be further to limit judicial discretion and make mandatory the inspection of all adult presentence reports by defendant’s attorney and the defendant. Background material and recommendations arrived from the Supreme Court staff only today, which is two days prior to the time set for signing this opinion. Prompt consideration of McFarlin, Rabb and Loomis is valid because of the number of cases backed up awaiting the decision as to the issue of whether a juvenile record can be considered in an adult’s presentence report. The relevant portion of the opinion (through section IV) resulted after extensive briefing, oral argument and Court discussion, so that Justice Levin’s thoughtful opinion to that point is ready for agreement or disagreement.
This is not at all true with the extra section. Some history is relevant for at least two reasons: (1) I believe the matter of the rule not appropriately before the Court, and (2) there is a lack of wisdom in rushing it in through the back door, as it were, before adequate current consideration can be given to such a dramatic change.
Supreme Court Administrative Rule 933 provides:
"Amendments to these rules shall be made by the adoption of an entire new or amended rule or sub-rule by the Supreme Court after giving reasonable notice to the Secretary of the State Bar of Michigan and to the *578Court Administrator of the proposal and of the manner and means by which comments thereon may be made. The Secretary of the State Bar shall notify the appropriate committees or sections of the State Bar of the proposed amendments and of the manner and means by which the comments may be made. The Court Administrator shall notify the appropriate committees of the Judicial Conference of the proposed amendments and of the manner and means by which the comments may be made. Upon a finding of a need for immediate action, the Court may dispense with the notice requirements of this rule.”
I suggest that "immediate action” is not necessary as to section V with the rule incorporated.
The material received today reveals that such a proposed rule was published in the State Bar Journal in 1971 and that the resultant comments reported to the Court on November 22, 1971, were so overwhelmingly negative that the matter was eventually tabled on March 29, 1972, more than a year before the matter comes before the new Court, ostensibly from "the table”. We proceed by Robert’s Rules of Order. The procedure which the Court followed is suspect under those rules.
However, disregarding rules of procedure, there is a more fundamental reason for careful consideration of the proposed rule incorporated by section V.
The comments which resulted from the 1971 publication were, in general, critical or questioning of all or parts of the proposal. It also should be noted that a Federal system survey of 689 judges of Federal Courts of Appeal, Federal district courts and Federal probation officers revealed that 91% opposed compulsory disclosure of presentence reports. After a three year study by the Judicial Conference, the United States Supreme Court ap*579proved Federal Rule of Criminal Procedure 32(c)(2), which is as follows:
"The report of the presentence investigation shall contain any prior criminal record of the defendant and such information about his characteristics, his financial condition and the circumstances affecting his behavior as may be helpful in imposing sentence or in granting probation or in the correctional treatment of the defendant, and such other information as may be required by the court. The court before imposing sentence may disclose to the defendant or his counsel all or part of the material contained in the report of the presentence investigation and afford an opportunity to the defendant or his counsel to comment thereon. Any material disclosed to the defendant or his counsel shall also be disclosed to the attorney for the government.”
Some of the 1971 comments gleaned from a 22 page condensed report, carry a common thread of concerns worth exploring, such as:
The purpose is commendable, the vehicle is not.
As worded, the rule would impose immense appellate problems, not the least of which would concern efforts to interpret the last sentence:
"The action of the court in excepting information from disclosures shall be subject to appellate review.”
Would the Court of Appeals have the right to alter a sentence which is within statutory limits? If remanded to a trial judge, what problems arise in a one-man circuit?
The mandatory rule would encourage "bootlegging” of information and a lessening of reliability.
The sentencing process would take on the aspects of another trial. (Query: Would the defendant have the right to subpoena witnesses to refute "derogatory information”?)
If the judge must decide what is derogatory and then whether it is to be excluded, giving reasons on the record for such exclusion, would not the purpose of that provision be defeated?
*580When courts are the objects of criticism because of the complexity of criminal proceedings, would not another complex rule providing the already convicted criminal with one more means of obstruction and delay give even more credibility to the charge that a criminal conviction is never final excepting upon dismissal or death?
Would the person convicted then have a further right to Miranda warnings upon inquiries of the probation officer or judge?
Would he or she have the right to further jury determination of disputed facts in the report?
Because it is the general practice now to discuss this report with the lawyer, and/or the defendant, would the defendant be helped or harmed by the anticipated “bland” report from which a judge would gain only a partial picture?
These and many more concerns were expressed in 1971. The welfare of the defendant is of great importance and the need of the judge to know all that is reliable is inherent in any rehabilitative thrust.
In order to avoid mass confusion, unestimated expense and possible harm both to the defendant and the judicial system, it is my belief that this rule deserves more than perfunctory consideration.
Further, there is merit in the statement ending Justice T. E. Brennan’s concurring opinion in People v Anderson, 389 Mich 155, 221 (1973):
"But, if our opinions are to be of any value as precedent, they should be limited to the enunciation of those rules of law which are decisional, related to the facts in the case before us, and supportive of the result arrived at.”
2.
I take issue with the premise upon which the conclusion in section V is based, to-wit:
*581"We recognize, as has been urged upon us, that the juvenile court history of the defendant contained in the presentence report may be misleading, incomplete or inaccurate. Yet, under present practice, the defendant might not see the presentence report or have an opportunity to rebut any derogatory information. We also recognize that, for a variety of reasons, a juvenile offender may not vigorously defend a doubtful charge.”
No criteria for such assumptions are given and, I suggest, there are none to substantiate such conclusions.
First, the juvenile officers compiling the reports (comparable to presentence investigations) are highly trained people with the same educational requirements as adult probation officers and schooled in the importance of accuracy.
Second, it is the generally accepted policy of probate and juvenile judges to make these reports available to all lawyers involved. Whether there is or is not a lawyer representing the child, the judge (or referee in some cases) discusses the report and takes testimony on the record at the time of each disposition. Indeed, this hearing is limited by Juvenile Court Rules 7.2(e)(4), 8.1(b) and 8.3(b).
In essence, juvenile reports are subjected to strict rules and practices and must stand tests of accuracy above and beyond present requirements for adult presentence reports.
Next, it would be a rare judge indeed who might overstep those tightly proscribed limits as to proof of "charges” — even allowing for human frailty in this, as in all facets of life. Certainly, no such infirm generality as stated should be the basis for an important decision.
In the absence of (1) an accurate basis for the conclusion reached, (2) opportunities to hear all sides of the question and (3) a due consideration of *582consequences — good and bad — it seems lacking in judicial restraint and wisdom to take this route to cavalierly alter present procedures.
ADDENDUM:
A revision in the majority opinion was this day received. It was confined primarily to the first sentence in section V and it is apparent upon the reading of that opinion and this opinion, dissenting is to that section. The basic reasoning remains the same, so in the interest of time, this concurrence in part and dissent in part remains as originally written.