Massachusetts District Attorneys Association the massachusetts prosecutors’ manual: domestic violence & sexual assault

8.2. PROBATION REVOCATION HEARINGS

A defendant who is acquitted of a crime he allegedly committed while on probation may still be surrendered on the basis of that conduct, because while a criminal conviction requires proof “beyond a reasonable doubt,” a probation surrender uses the lesser “preponderance of the evidence” standard. Commonwealth v. Holmgren, 421 Mass. 224 (1995) (probation revocation for OUI). Obviously this is a powerful tool for repeat abusers, particularly where the acquittal comes about because the case was not strong enough without the victim’s testimony.

In January, 2000, the Administrative Office of the Trial Court issued rules entitled “District Court Rules for Probation Violation Hearings” which address the commencement, conduct and disposition of probation violation proceedings.

With these rules, prosecutors have a good opportunity to hold abusers accountable without some of the difficulties often faced at trial. (Often times the “cycle of violence” within a battering relationship has progressed to the honeymoon/manipulation stage by the time trial commences. Because a probation violation hearing is conducted shortly after the new incident, a battering victim may be quite willing to testify for the Commonwealth. Furthermore, the standard of proof is preponderance of the evidence, not beyond a reasonable doubt, and reliable hearsay is admitted.)

Three of the most significant elements of the rules are extremely pertinent to the prosecution of domestic violence cases and repeat sexual offenders:
(1) The Court is Required to Commence Proceedings.

Under the rules, in all instances where the probationer is charged with a criminal offense, probation violation proceedings have to be commenced. Commencement is by service of a notice that describes the alleged violation and indicates the hearing date, with the notice to be served at arraignment. Rules 3(b) and (c).

(2) The Court is Precluded from “Tracking” the Violation Hearing along with the Criminal Prosecution.

Courts have often delayed a probation violation hearing until the new criminal prosecution underlying the probation violation charge has been completed. The rules do not allow this: “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 (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.” Commentary to Rule 5(e). Additionally, Rule 7(a) provides, “The court shall decide the matter promptly and shall not continue the proceeding generally.”

3. 
   The District Attorney is Able to be an Active Participant.
   

Rule 5(f) supports the DA’s involvement in the hearings: The presentation of the evidence against the probationer at a violation hearing would be the responsibility of the probation officer assigned by the Chief Probation Officer, but the District Attorney would be able to actively participate so long as he or she confers with the probation officer assigned prior to the hearing. The District Attorney may also 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. 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 one or more violation occurred, the District Attorney may be heard regarding the court’s disposition of the matter. Id.
In 2004, the SJC held that when the District Attorney participates in probation revocation proceedings, it is a party to those proceedings and has standing to directly appeal an adverse ruling. See Commonwealth v. Negron, 441 Mass. 685 (2004).
The rules also:

• 
  Require the court to adjudicate the factual issue (that is, it must make a finding of whether or not the alleged violation occurred), Rule 7(a)-(c);
  
• 
  Describe the court’s dispositional options, which are discretionary and very broad: the court can continue the current probation conditions, change the conditions, add new conditions, or revoke probation, Rule 7(d);
  
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  Prevent the court from “staying” the sentence upon revocation, unless: (1) the sentence is pending appeal in accordance with Mass. R. Crim. P. 31, or (2) at the court's discretion, and upon the probationer's motion, to provide a brief period of time for the probationer to attend to personal matters prior to commencement of a sentence of incarceration, Rule 7(e);
  
• 
  Delineate evidentiary requirements, particularly the use of hearsay, at probation violation hearings, Rule 6;
  
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  Clarify that preliminary hearings are required only where the probationer is to be held in custody pending the final violation hearing, and that there is no bail issue on such probation custody -- if the court finds probable cause for the alleged probation violation, it is able to hold the probationer in custody and the defendant shall not be released on bail pending the final probation violation hearing. See Commonwealth v. Puleio 433 Mass. 39 (2000) (also holding that the defendant has no right to a Superior Court bail review of the detention order). Bail and any other terms of pretrial release regarding a newly charged crime are legally unrelated to the question of custody on the probation allegation, Rule 8.
  

Important Note: Crawford v. Washington, 124 S. Ct. 1354 (2004) and Commonwealth v. Gonsalves, 445 Mass. 1 (2005) do not apply to probation revocation hearings. See Commonwealth v. Wilcox, 446 Mass. 61 (2006). In deciding that Crawford is inapplicable to probation revocation hearings, the SJC re-stated its holding in Commonwealth v. Durling, 407 Mass. 108 (1990); “At a revocation hearing, a probationer need not be provided with the full panoply of constitutional protections applicable at a criminal trial.” The right to confrontation applies solely to criminal prosecutions and “a subsequent probation surrender proceeding is not a stage of a criminal prosecution.” Id.