Massachusetts District Court Rules for Probation Violation Proceedings Rule 8: Preliminary Violation Hearings
(a) Purpose. A preliminary probation violation hearing shall be conducted only when the Probation Department seeks to hold a probationer in custody on the basis of an alleged violation of probation pending the conduct of a full probation violation hearing. The issues to be determined at a preliminary probation violation hearing are whether probable cause exists to believe that the probationer has violated a condition of the probation order, and, if so, whether the probationer should be held in custody.
(b) Notice of Hearing. The probationer shall be given a written notice indicating the preliminary nature of the hearing, the alleged probation violation, and that the purpose of the hearing is to determine that there is probable cause to believe that he or she has committed that violation. The notice shall be served in hand when the probationer is before the court having been arrested on a new criminal charge, having been arrested for a probation violation, or for any other reason.
(c) Conduct of Hearing. Preliminary probation violation hearings shall be conducted by a judge or, if necessary, a magistrate, in a courtroom on the record, and shall proceed in an informal manner. The probationer shall be entitled to counsel. Following service of notice, as provided in section (b), above, and appointment of counsel, if necessary, the probationer shall be allowed a reasonable time to prepare for the hearing. At such hearing, the probation officer shall present evidence to support a finding of probable cause. The District Attorney may assist in the presentation of such evidence. The probationer shall be entitled to be heard in opposition. Testimony shall be taken under oath. The court shall admit such evidence as it deems relevant and appropriate. The proceeding shall be limited to the issue of probable cause to believe that the alleged violation of probation has occurred.
If probable cause is found, a probation violation hearing shall be scheduled, the probationer shall thereupon be served in hand with a notice of said hearing, and the court may order the probationer to be held in custody pending the conduct and completion of the scheduled final violation hearing. The court's decision whether to release the probationer pending the conduct and completion of the final probation violation hearing, notwithstanding a finding of probable cause on an alleged violation, shall include, but not necessarily be limited to:
i. the probationer's criminal record;
ii. the nature of the offense for which the probationer is on probation;
iii. the nature of the offense or offenses with which the probationer is newly charged, if any;
iv. the nature of any other pending alleged probation violations;
v. the likelihood of probationer's appearance at the final probation violation hearing if not held in custody; and
vi. the likelihood of incarceration if a violation is found following the final probation violation hearing.
If no probable cause is found, a probation violation hearing may be scheduled and the probationer thereupon served with notice thereof, but the probationer may not be held in custody pending said hearing based on the alleged probation violation.
(d) Bail. Upon a finding of probable cause and an order of custody, the court shall not consider or impose any terms of release such as bail, personal recognizance or otherwise as an alternative to such custody. Notwithstanding such order of probation custody, the court shall proceed to determine the issues of bail and pretrial detention ("dangerousness") on any newly charged offense, as provided by law.
Added December 2, 1999, effective January 3, 2000.
Commentary. Preliminary probation hearings are required only when the probationer is to be held in custody for an alleged probation violation pending the conduct of a full hearing.
"The purpose of the preliminary hearing is to protect the rights of the ... probationer who, being at liberty, is taken into custody for alleged violation of his ... probation conditions, and detained pending a final revocation hearing.".
Fay v. Commonwealth, 379 Mass. 498, 504, 399 N.E.2d 11, 15 (1980) (citations omitted).
Thus, for example, there is no requirement of a preliminary hearing if the alleged probation violator already has received a probable cause hearing on the new crime and has been bound over to the grand jury. Stefanik v. State Board of Parole, 372 Mass. 726, 363 N.E.2d 1099 (1977). See also Commonwealth v. Odoardi, 397 Mass. 28, 33, 34, 489 N.E.2d 674, 677 (1986) (no preliminary hearing where probationer already incarcerated at the time of the proceeding on the alleged violation).
The issue of whether a probationer should be held in custody pending the conduct of a probation violation hearing can arise when a defendant is before the court on a separate matter (e.g., on arrest for a new criminal charge) or having been arrested with or without a warrant for a violation of probation. G.L. c. 279, s. 3.
The probationer is entitled to a preliminary hearing "at the time of his arrest and detention..." Commonwealth v. Odoardi, 397 Mass. 28, 33, 489 N.E.2d 647, 677 (1986). That arrest can take place while the probationer is at liberty or when a probation officer takes custody of a probationer who is before the court on another matter, such as the charge of a new crime. Written notice must be given to the probationer at that time and the probationer and counsel must be given time to prepare for this hearing. If a continuance is requested and allowed, the custody resulting from the arrest will continue until the preliminary hearing (or a final hearing if the preliminary hearing is waived) is conducted.
The rule does not provide for notice of a preliminary probation violation hearing to be served on a probationer who is at liberty. If it is believed that a probationer who is at liberty has violated probation and should be in custody pending a hearing on that violation, custody should be effected by an arrest with or without a warrant, under G.L. c. 279, s. 3. If it is believed that a probationer who is at liberty has violated probation, but there is no need to hold him or her in custody pending a final hearing, there is no need to serve a notice of a preliminary hearing. Rather, a notice of a final hearing should be served.
At the preliminary probation violation hearing, the question of revocation or other disposition is not at issue, only the question of probable cause for the alleged violation. Of course, the preliminary hearing can be transformed into a "final" hearing if the defendant waives the minimum seven-day notice period and both the probationer and the Probation Department are willing to proceed immediately with either an admission or a hearing. Only in such instances will the issue of revocation or other disposition be appropriately addressed.
The rule provides no qualifications on the evidence that may be admitted at preliminary hearings, other than to state that the court may hear such evidence as it deems appropriate. The rules of evidence do not apply. There appears to be no law categorically disqualifying a judge who has conducted a preliminary hearing from conducting the subsequent final hearing. When no judge is available, a magistrate may conduct the preliminary hearing. See G.L. c. 221, ss. 62B and 62C(g), and Uniform Magistrate Rule 6.
Section (c) of the rule also provides that upon a finding of probable cause, the court may order the probationer to be held in custody pending the final hearing. A finding of probable cause does not require a custody order. The rule lists six factors that the court must consider when deciding whether to release the probationer notwithstanding the finding of probable cause on the alleged violation. The list is not exclusive and the rule does not attempt to assign relative weight to the factors.
Section (d) makes clear that bail and other terms of pretrial release have no application regarding a probationer's custody pending the conduct and completion of a final probation violation hearing. Bail and other conditions of pretrial release, including pretrial detention based on "dangerousness," under G.L. c. 276, ss. 58 and 58A, have no legal or conceptual relevance to custody on an alleged probation violation. They relate solely to a newly alleged crime. If the court finds probable cause for a probation violation, it may order the defendant into custody pending the final hearing on the violation. If the court does not find probable cause, the probationer cannot be held in custody on the alleged violation. Even if the probationer is held on the probation allegation, if he or she is also before the court on a new criminal charge, the court must address the terms of pretrial release. This issue is unrelated to custody on the probation charge. The prosecutor may want to be heard on the issue of bail or dangerousness because if the probation matter is promptly resolved, the defendant may be released from custody on the probation matter well before the criminal case is concluded.
Conversely, the issue of probation custody should be addressed regardless of whether or not the prosecutor plans to ask for high bail or pretrial detention based on dangerousness.
There appears to be no basis in statutory or case law for Superior Court review of a District Court probable cause decision resulting in custody pending a final probation violation hearing.