¶1With the record before this Court, I am compelled to join in the majority’s view that the presentence investigation process is not a critical stage of the adversarial proceedings. The presentence questionnaire and the presentence investigation report alluded to in the briefs and at oral argument were not made a part of the record on appeal. With an incomplete record before us, the missing presentence questionnaire and presentence investigation report must be presumed to support the action of the trial court. Hoffman v. State, 125 Idaho 188, 191, 868 P.2d 516, 519 (Ct.App.1994). Thus, the majority’s analysis could only rely on the characterization of presentence investigations in Idaho as being “routine” and delving into information that for the most part is available in public records. See Estrada v. State, 143 Idaho 558, 562, 149 P.3d 833, 837 (2006).
¶2I do not read Estradaas broadly as the majority and can see where a different conclusion may result after careful examination of Idaho’s presentenee investigation process. There may be substantial similarities with psychosexual evaluations and the numerous evaluations and testing that can be part of the presentence investigation process. For instance, during a presentence investigation, a probation officer may conduct domestic violence evaluations and drug and alcohol evaluations. Additionally, Stuart’s counsel asserted at oral argument that probation officers now conduct several intrusive evaluations as part of a “routine” presentence interview. These include the “TCU” which counsel represented as a “drug testing instrument,” an “LSIR” which counsel represented as a “Level of Services Inventory Revised” assessment to determine what types of programming are relevant in the correctional setting, and a “GAAN” assessment.
¶3Additionally, it is noteworthy that at least one federal circuit suggests that under the new federal guidelines system, the presentence investigation process may be a critical stage. See United States v. Colon, 905 F.2d 580, 588 (2d Cir.1990). In Colon, the court noted that, under the new federal sentencing *472guidelines, an admission to a probation officer of related past crimes can lead to a drastically increased sentence that is beyond the discretion of the sentencing court to reduce in any substantial fashion. The court had no occasion to hold that the presentence investigation in that case was a critical stage, however, because the defendant waived any objection to admission at sentencing of his statements made to the presentence investigator. Id.
¶4One of the most recent states to address the issue squarely was Vermont in 2004. See In re Carter, 176 Vt. 322, 848 A.2d 281 (2004). In Carter, the post-conviction petitioner, after attempting unsuccessfully to invoke the right to counsel during the presentence interview, made damaging statements to probation officers which “ensured that he would spend virtually all of his adult life in jail.” Id. at 296. The court initially held that a defendant’s right to counsel under the Sixth Amendment depends primarily on the possibility of prejudice and unfairness in the proceedings and the ability of the presence of counsel to protect against such prejudice and unfairness. Id. at 300. The court noted that the federal cases holding that a presentence' interview is not a critical stage were distinguishable because probation officers who prepare the reports in the federal system are employees of the judicial branch who answer to no one but the sentencing judge. In contrast, probation officers in Vermont who prepare the reports are employees of the executive branch, responsible to the Commissioner of Corrections. The court acknowledged that probation officers who prepare reports in Vermont are normally not agents of the prosecutors, and the prosecutors do not direct the actions of the probation officers. At the sentencing hearing in Carter, however, the prosecutor presented testimony from the officer emphasizing the reasons for a long sentence of incarceration, which led the court to conclude that the officer became, in essence, an expert witness for the prosecution in the adversary sentencing hearing. The Vermont court held that the presentence interview was a critical stage of the sentencing process and, therefore, a Sixth Amendment right to counsel attaches to the interview. Id. at 301. The court also held that once the petitioner invoked his right to counsel, interviewing should have stopped until counsel was given the opportunity to be present. Id. See also United States v. Tisdale, 952 F.2d 934, 940 (6th Cir.1992), United States v. Herrera-Figueroa, 918 F.2d 1430, 1433 (9th Cir.1991), and Commonwealth v. Talbot, 444 Mass. 586, 830 N.E.2d 177, 184 (2005) (exercising court’s supervisory authority to formulate procedural rules, the court held that probation officers are required, upon request, to permit an attorney to assist a defendant at the presentence interview).
¶5While Idaho today sits with the majority in determining that the presentence investigation process is not a critical stage in the criminal adversarial system, it may be short-lived upon more comprehensive review of Idaho’s presentence investigation process.