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Massachusetts District Court Rules for Probation Violation Proceedings Rule 5: Conduct of Hearings

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(a) In General. Probation violation hearings shall be conducted by a judge, in open court, on the record, with such flexibility and informality as the court may deem appropriate, consistent with the requirements of this rule and applicable law. All testimony shall be taken under oath. The presentation of the case against the probationer shall be the responsibility of the probation officer assigned by the Chief Probation Officer of the court. The probationer shall be entitled to the assistance of counsel, including the appointment of counsel for probationers determined by the court to be indigent.

(b) Requirement of Two-Step Procedure. Probation revocation hearings shall proceed in two distinct steps, the first to adjudicate the factual issue of whether the alleged violation or violations occurred, the second to determine the disposition of the matter, if a violation of probation is found by the court to have occurred.

(c) Adjudication of Alleged Violation. Probation violation hearings shall commence with a statement by the probation officer describing the violation or violations alleged in the Notice of Violation and Hearing, and shall proceed with a presentation of the evidence supporting said allegations. The probationer shall be permitted to present evidence relevant to the issue of the alleged violation. Each party shall be permitted to cross-examine witnesses produced by the opposing party. Hearsay evidence shall be admitted by the court in accordance with Rule 6, provided that the court shall enforce any statutory privileges unless waived and any legally required disqualifications. The probation officer shall have the burden of proving the alleged violations with or without the participation of the District Attorney as provided below. The standard of proof at such hearings shall be the civil standard of preponderance of the evidence. After the presentation of evidence, both the probation officer and the probationer shall be permitted to make a closing statement.

(d) Dispositional Decision. If the court finds that the probationer has violated one or more conditions of probation as alleged, the probation officer shall recommend to the court a disposition consistent with the dispositional options set forth in Rule 7(d), below, and may present argument and evidence in support of that recommendation. The probationer shall be permitted to present argument and evidence relevant to disposition and to propose dispositional terms.

(e) Continuances. Probation violation hearings shall be continued only by a judge and for good cause shown. The reason for any continuance shall be stated by the judge and set forth in the record of the case. No continuance shall be ordered other than to a date certain and for a specific purpose, and as provided in Rule 7(a). The pendency of a criminal action on a charge which also constitutes an alleged violation of probation shall not be grounds for a continuance of the probation violation hearing.

(f) Participation of the District Attorney.

(i) In general. The District Attorney may participate in probation violation hearings as provided in G.L. c. 279, s. 3, and such participation shall be permitted in any such proceeding regardless of whether the criminal case in which the probation order was issued involved a felony charge.

(ii) Coordination with the Probation Department. If the District Attorney intends to appear at a probation violation hearing, he or she shall confer prior to the hearing with the probation officer responsible for presenting the matter to the court, for the purpose of coordinating the District Attorney's involvement in the hearing with the planned presentation of the probation officer.

(iii) Presentation of evidence. The District Attorney may present and examine witnesses at the hearing and may examine witnesses presented by the probation officer, and may cross-examine witnesses presented by the defendant. The probationer may cross-examine witnesses presented by the District Attorney. The District Attorney shall be responsible for the attendance of every witness he or she wishes to present, and for the summoning of such witnesses.

(iv) Finding and Disposition. After the presentation of evidence, the District Attorney may make a statement regarding the factual issue of whether one or more violations of probation has occurred. If the court finds that the probationer has violated one or more of the conditions of probation as alleged in the Notice of Violation and Hearing, the District Attorney may be heard regarding the court's disposition of the matter. The District Attorney may present his or her dispositional recommendations orally or in writing.

Added December 2, 1999, effective January 3, 2000.

Commentary. Probation revocation hearings are not part of a criminal prosecution, and for this reason a probationer need not be provided with the full panoply of constitutional protections applicable at a criminal trial. Gagnon v. Scarpelli, 411 U.S. 778, 782, 93 S. Ct. 1756, 1759 (1973). Indeed, case law has sought to preserve the flexible, informal nature of probation revocation hearings. See Black v. Romano, 471 U.S. 606, 105 S. Ct. 2254 (1985).

On the other hand, the probationer's liberty is potentially at stake in violation proceedings, and therefore certain due process protections are required. As set forth for parole revocation in Morrissey v. Brewer, 408 U.S. 471, 92 S. Ct. 2593 (1972) and made applicable to probation revocation by Gagnon v. Scarpelli, 411 U.S. 778, 93 S. Ct. 1756 (1973), there are six such fundamental due process requirements: (1) written notice of the claimed violations of probation, (2) disclosure to the probationer of the evidence against him, (3) opportunity to be heard in person and to present witnesses and documentary evidence, (4) the right to confront and cross-examine adverse witnesses (unless a hearing officer specifically finds good cause for not allowing confrontation), (5) a neutral and detached hearing body, members of which need not be judicial officers or lawyers, and (6) a written statement by the fact finder as to the evidence relied on and reasons for revoking probation.

This rule is intended to provide an orderly, relatively informal and flexible procedure for probation violation hearings, but one in which all required and appropriate due process safeguards are ensured.

General Requirements

Section (a) requires several fundamental procedural elements: a judicial procedure in open court, testimony under oath and the creation of a record. With regard to the record, Rule 11 of the Special Rules of the District Courts of Massachusetts, "Recording of Court Proceedings," requires that such proceedings be electronically recorded. Any District Court judge may conduct the hearing; the original sentencing judge is not required.

One of the six fundamental due process requirements for probation violation hearings, as provided in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756 (1973), is "a neutral and detached hearing body." This requirement would appear to preclude the model by which a judge would take the initiative in the proceeding, as in an inquest, and the probation officer remain essentially passive in the role of a witness. Accordingly, the rule requires the probation officer, who is the "accuser," to present the case, with the judge remaining in the traditional neutral role. This does not prevent the judge from asking appropriate questions, nor is it inconsistent with the role of the probation officer as witness. The probation officer must provide evidence under oath and is subject to cross-examination.

It should be noted that in probation violation hearings the exclusionary rule does not apply if the police were unaware that the defendant was a probationer. Commonwealth v. Olsen, 405 Mass. 491, 541 N.E.2d 1003 (1989) (evidence seized in violation of Fourth Amendment was admissible in probation violation proceeding, where police who seized evidence neither knew nor had reason to know of probationary status of person whose property was seized). There is no Massachusetts decision on whether the exclusionary rule applies in these proceedings where police are aware that the person is on probation.

Regarding the right to counsel, the rule goes beyond current law by providing the right to counsel regardless of whether the probationer faces the possibility of imprisonment if probation is revoked. See Commonwealth v. Faulkner, 418 Mass. 352, 638 N.E.2d 1 (1994) (probationer at probation violation hearing has right to counsel if revocation might result in imprisonment).

Two-step Proceeding

Section (b) imposes the critical requirement of a two-stage proceeding. As observed by the Supreme Court of the United States,

"the decision to revoke probation typically involves two distinct components: (1) a retrospective factual question whether the probationer has violated a condition of probation; and (2) a discretionary determination by the sentencing authority whether violation of a condition warrants revocation of probation".

Black v. Romano, 471 U.S. 606, 611, 105 S.Ct. 2254, 2257 (1985), as quoted in Commonwealth v. Marvin, 417 Mass. 291, 295, 629 N.E.2d 1317, 1320 (1994) (Liacos, C.J., dissenting).

This dichotomy is further reflected in Massachusetts law:

"At the revocation hearing, the judge must determine, as a factual matter, whether the defendant has violated the conditions of his probation. If the judge determines that the defendant is in violation, he can either revoke the probation and sentence the defendant or, if appropriate, modify the terms of his probation".

Commonwealth v. Durling, 407 Mass. 108, 111, 551 N.E.2d 1193, 1195 (1990).

This distinction is an important one. The factual decision that a probation violation has occurred in no way compels an order of revocation. The court has wide dispositional latitude if a violation is found. See Rule 7(d). However, even if an alleged violation is relatively minor and, in all likelihood will not warrant revocation, it is important that it be adjudicated. It is essential for effective probation that a record of compliance and noncompliance with probation orders be maintained.

In addition, the distinction between the factual determination and the disposition must be maintained because different legal requirements are invoked. For example, the factual issue of whether an alleged violation has occurred must be decided based on a preponderance of the evidence, Commonwealth v. Holmgren, 421 Mass. 224, 656 N.E.2d 577 (1995), while the dispositional decision is a matter of judicial discretion. McHoul v. Commonwealth, 365 Mass. 465, 469-470, 312 N.E.2d 539, 543 (1974). Similarly, the "seriousness" of the alleged violation is irrelevant to whether it occurred, while it is relevant to the question of appropriate disposition.

Adjudication of Violation

Section (c) sets out the basic requirements for how the first step of the hearing, adjudication of the alleged violation, should proceed. It ensures both parties the right to present evidence and cross-examine adverse witnesses. The court has some discretion in limiting cross-examination involving irrelevant or redundant questioning. See Commonwealth v. Odoardi, 397 Mass. 28, 34, 489 N.E.2d 674, 678 (1986). Section (c) also entitles both parties to make a closing statement. In Commonwealth v. Marvin, 417 Mass. 291, 295, 629 N.E.2d 1317, 1320 (1994), the court declined "to impose a universal due process requirement that a defendant in a probation revocation hearing has an absolute right to make a closing argument." However, that case goes on to state that it would be a "better practice" to permit a probationer to present at least a brief closing argument. The provision in this rule is intended to ensure that this better practice is provided for both parties.

Disposition

Section (d) provides that both parties may be heard regarding disposition, assuming the court finds that one or more alleged violations was committed. The court's dispositional options are provided in Rule 7. The probationer's right to be heard and present evidence regarding disposition implicate due process considerations. See Commonwealth v. Odoardi, 397 Mass. 28, 489 N.E.2d 674 (1986).

Continuances

Section (e) sets out certain requirements for continuances. It expressly eliminates "tracking," i.e., continuing a probation violation hearing to await disposition of the criminal case involving the charge that is also the alleged probation violation. The reason for this rule is that, on the one hand, there is no basis in law or in terms of fairness to the probationer for such a continuance, and, on the other hand, proceeding without delay on the alleged violation is of great importance in terms of the primary goals of probation, which are rehabilitation of the probationer and protection of the public. Commonwealth v. LaFrance, 402 Mass. 789, 795, 525 N.E.2d 379, 383 (1988) (citations omitted). The rule does provide for continuances where good cause is shown and the reason for the continuance is stated by the judge and set forth on the record.

The Supreme Judicial Court has long made clear that there is no prerequisite that the probationer be convicted of a criminal charge to permit that criminal conduct to be used as the basis of a probation revocation.

"If the act alleged to be a violation of probation is made the subject of a criminal complaint, the commencement of the criminal prosecution does not preclude the revocation of the earlier probation nor does it require that the revocation proceedings be deferred until the completion of the new criminal proceeding.".

Rubera v. Commonwealth, 371 Mass. 177, 181, 355 N.E.2d 800, 803 (1976) and cases cited.

After analyzing the federal constitutional law relevant to the point and the precedents from other states, the court in Rubera went on to explain the policy reasons that favor proceeding with revocation proceedings and not awaiting the outcome of the criminal case:

"We are aware that the practice which was followed in revoking the petitioner's probation in this case was not in accord with the procedure suggested by the ABA Project on Standards for Criminal Justice, Standards Relating to Probation ยง 5.3, at 62-63 (Approved Draft 1970), that "[a] revocation proceeding based solely upon commission of another crime ordinarily should not be initiated prior to the disposition of that charge." [citation omitted] That standard seems to impose an unreasonable and unfair burden on law enforcement authorities by placing them in the dilemma of having to decide between (a) having to forgo criminal prosecution of a person who is on probation and who appears to have committed another offense until they have first pursued steps to revoke his probation on the basis of his conduct in ordinary proceedings without reliance on any subsequent criminal conviction, or (b) having to start criminal prosecution promptly on the later offense and then being prevented from trying to revoke his earlier probation until after the later prosecution has run its full course which, in the present state of our criminal dockets, would amount to arming the defendant with the weapon of potential delay with which he could forestall termination of the proceeding by endless appeals. We decline to impose the burden of such a choice on either probation officers or prosecutors.".

Rubera v. Commonwealth, supra, at 184-185, 355 N.E.2d 800, 805 (1976).

See also, Commonwealth v. Holmgren, 421 Mass. 224, 656 N.E.2d 577 (1995), which held that a probation violation hearing may proceed on a charge of a new crime, even if the defendant has been acquitted of that crime, because the standard of proof at a probation hearing is lower than the standard at a criminal trial. In other words, an acquittal, or the possibility of an acquittal, is irrelevant to a probation violation proceeding because failure to convict under the "reasonable doubt" standard neither precludes nor is inconsistent with a finding of a probation violation under the "preponderance of the evidence" standard.

The only legal relationship between a probation violation hearing and a criminal prosecution for the same alleged criminal conduct is that, if the criminal case does go forward before the probation hearing and results in a conviction, that conviction will be evidence of a probation violation and no independent finding of the underlying facts is required of the judge. Commonwealth v. Maggio, 414 Mass. 193, 605 N.E.2d 1247 (1993).

District Attorney Participation

Section (f) addresses the subject of participation by the District Attorney. Rules 3 and 4 require the court to provide a copy of every Notice of Probation Violation and Hearing to the District Attorney. Section (t) of this rule is intended to clarify the involvement of the District Attorney in those cases where he or she decides to participate, consistent with the statutory provisions of G.L. c. 279, s. 3.

It should be noted that as a constitutional matter, probation functions are within the judicial branch, and the office of the District Attorney is considered within the executive branch. Commonwealth v. Tate, 34 Mass. App. Ct. 446, 447-448, 612 N.E.2d 686, 688 (1993) and cases cited. Under the Massachusetts Constitution, Pt. 1 Art. 30, the branches must maintain a separation of governmental powers.

"That separateness does not, however, lead to the conclusion that a district attorney's office may not assist the probation service in presenting evidence in support of a position that the probation service had decided upon.".

* * *

"[P]robation officers are only aided, not interfered with, when district attorneys, upon invitation, conduct examination of witnesses and present evidence.".

Id. at 448, 612 N.E.2d at 688, and cases cited.

Thus the right of District Attorneys to present evidence and witnesses, and to examine and cross-examine witnesses at these proceedings would appear to be constitutionally acceptable as long as it does not fundamentally interfere with probation.