Probation Violation Hearings

If a defendant is found guilty after trial, or if a defendant chooses to resolve his case with some sort of plea rather than proceed to trial, one possible sentence he may receive is probation. In most circumstances probation is considered to be a more favorable sentence than incarceration. Being on probation, however, is by no means easy. While there are several different types of probation, all probationary sentences require a defendant to agree to certain terms and conditions, in exchange for permission to remain in the community rather than be sentenced to some period of jail or prison time. When a defendant is placed on probation, he is required to sign a probation contract, indicating his agreement to abide by the terms and conditions of probation, as ordered by the court. Many of these terms and conditions can be difficult and time consuming, such as substance abuse treatment, completion of a certified batterer's program or anger management program, seeking and/or maintaining employment, and/or completing a GED program or obtaining a high school degree. Further, if a person is placed on probation, he must report to his probation officer, as well as pay a variety of court fees, including a probation supervision fee. Completing these requirements can be very challenging for some people. If a person fails to meet each and every requirement laid out under the probation contract, he may be at risk of violating his probation and his probation officer may seek a probation violation hearing. A probation violation hearing is a hearing requested by the probation department alleging that a defendant (referred to as a probationer during probation violation proceedings) has violated the terms and/or conditions of his probation, and seeking some sort of punitive consequence.

Some examples of potential bases for a probation violation include:

• Being charged with a new criminal offense on probation;
• failing to abide by conditions of probation such as those mentioned above;
• failing to complete any other program ordered by the court;
• Failing to appear in court, to report to a probation officer, or to pay money owed to the court or the victim in the case.

If a probation officer alleges that a probationer has violated the terms and conditions of his probation, the probation officer may ask the court to issue a warrant for the probationer’s arrest and have the probationer arrested and brought before the court. Alternatively, the probation officer may send notice of the alleged violation via mail and have the probationer to present himself in court.

There are typically two hearings involved when a probationer is accused of violating his probation (the process for the violation proceedings are laid out in the District Court Rules for Probation Violation Proceedings. The first hearing – called an initial violation hearing or preliminary surrender hearing – takes place at the probationer’s first appearance before the court. At the initial violation hearing, the probationer is notified of the alleged violations. A judge must then determine whether or not there is probable cause to believe that the probationer violated a term or condition of his probation, and therefore whether the court should move forward with the violation process and hold the second hearing – called a final violation hearing or a final surrender hearing.

The probation officer may also request a detention at the initial hearing. In other words, the probation department may request that the probationer be detained pending the final violation hearing. In cases where probation is seeking detention, there will be an argument before the judge as to both whether there is probable cause to believe a violation occurred, and whether the judge should exercise his or her discretion to detain the probationer prior to the final violation hearing.

If the judge determines that there is probable cause to believe the probationer has violated his terms and conditions of probation, the court will schedule the final probation violation hearing. At the final probation violation hearing, the court must determine two separate and distinct issues: first, whether a violation in fact has occurred; and if so, what sentence should be imposed as a result of the violation.

A probationer is entitled to a fully evidentiary hearing as to whether or not a violation occurred. The burden of proof is on the probation officer to show that a violation occurred, and the probation officer is responsible for the presentation of the case. Specifically, at the final violation hearing, the probation department must establish by a preponderance of the evidence that the probationer violated his probation. A preponderance of the evidence is defined as a “more likely than not” standard – so at a final hearing, the court must determine whether the evidence presented by the probation officer demonstrates that it is more likely than not that the probationer violated his probation. This is a considerably lower legal standard than beyond a reasonable doubt, which is what is required at a criminal trial. Therefore, even if where there is not sufficient proof to find a defendant guilty of a criminal offense at trial, he could still be found in violation of his probation as a result of the same alleged conduct.

During the final violation hearing, both the probation department and the probationer may present evidence, cross-examine witnesses, and make an argument to the court. Under Commonwealth v. Durling, 407 Mass. 108 (1990), hearsay evidence is generally admissible at a probation violation hearing, however, before admitting the hearsay, the court must first find that the evidence is “substantially trustworthy and demonstrably reliable” and that there is “good cause” for proceeding with the hearsay statements rather than the actual witness.

Following the presentation of the evidence, the judge must make a determination as to whether the probation department has established a violation of probation.

In some situations, a probationer may choose to forego a full hearing and stipulate – in other words agree – that there was a violation. For example, in cases where the judge is likely to find that a violation occurred, such an agreement may be preferable, as the court may be willing to be more lenient on sentencing if the probationer agrees that there was a violation, similar to the way in which a judge may be more lenient if a defendant decides to plead guilty in a criminal case rather than proceed to trial.

If a violation of probation is found, whether by agreement or as a result of a hearing, then the judge must decide what sort of penalty should be imposed as a result. Both the probation department and the probationer’s attorney have an opportunity to be heard on the issue of sentencing. The court has the following options in terms of the sentences that it may impose:

• continue the terms of probation as it deems appropriate;
• terminate the probationary conditions and period;
• modify the probationary terms, including adding conditions and/or extending the term of probation; or
• revoke the probation and impose some period of incarceration.

The potential sentence that the judge is likely to impose will likely depend on the seriousness of the violation.

Given the very serious potential consequences of a probation violation, including the possibility of incarceration, it is extremely important to have an experienced attorney who is able to both investigate the alleged violations and properly assess whether the probation department can in fact prove that a violation occurred, as a well as advocate for a favorable sentence in the event that a violation is found. If you or a loved one has been accused of a violation of probation it is important to get an attorney as soon as possible so that your rights and liberty are. Contact Attorney Daniel Cappetta to receive the experience you need and deserve.