If you are charged with a crime while on probation in Massachusetts, the probation officer likely will initiate a violation of probation proceeding in the court in which you were placed on probation. This is a very serious matter as you are now facing both the new case as well as a probation violation proceeding on the underlying probation case in which the Commonwealth can easily prove a probation violation simply based on the police report from the new offense.
If you are arrested or summoned for the new offense, the probation department at the court in which you are arraigned will notify the probation department of the court in which you are on probation of the new offense. In addition, a probation violation can be brought so long as there is probable cause of criminal conduct even if you are never charged with the related offense. If the probation department in which you are on probation requests a warrant due to a violation based upon the new criminal conduct, then there is a high likelihood that you might be placed into custody and transported to that court. There is a chance that you might even be held overnight in jail if the Sheriff’s Department is unable to transport you to the other court before the end of the business day. Even if either case is relatively minor or if the new matter is a summons arraignment, some judges will always transport a person on probation.
Once you appear at the court in which you are on probation, then there will be an initial probation violation hearing. The probation officer may ask to have you detained pending the final probation surrender hearing, or you can potentially be released on conditions of release or personal recognizance (in rare cases, a judge will release a person on bail). Again, even if the underlying charge in which you are on probation and the new offense are relatively minor, you are still facing being held in jail until the final probation surrender hearing if the judge decides to do so. This is one of the reasons why it is best to have an experienced probation violation hearing attorney working on your behalf. If there is underlying substance abuse issue, then a lawyer can suggest treatment, a program, or a section 35 commitment as an alternative to incarceration.
A final probation surrender hearing may occur anywhere from seven days to a month or two after the initial probation surrender hearing based upon whether the probationer is detained or released. Some district and municipal courts in Massachusetts will schedule a quicker date if you are detained, but some might have the date be approximately four weeks out. The reason for a longer date is because the probation officer has to prove at a final probation violation hearing that the probationer violated his or her probation. A probation officer will summons witnesses or police officers involved in the new case, and they need some time to allow for a summons to be received. At the final probation surrender hearing, there will either be a hearing in which the probation officer and witnesses may testify, or the probationer may stipulate to a violation.
There are many differences between a final probation violation hearing and a criminal trial. The standard at a probation violation hearing is lower than that at a criminal trial. To find a probation violation, the judge needs to find that it is more likely than not, or greater than 50 percent, that a probation violation occurred, which is the civil standard. This can result in the bizarre situation where you may be found not guilty of the new offense but still found in violation of your probation due to the difference in the standards of proof. In addition, hearsay evidence is admissible in probation violation hearings. Pursuant to Commonwealth v. Durling, 407 Mass. 108, 114 (1990), the Supreme Judicial Court stated that “reliable” hearsay is admissible in these proceedings. Also, Rule 7(b) of the District/Municipal Courts Rules for Probation Violation Proceedings further states that “[t]he court may rely on hearsay as evidence of a probation violation only if the court finds in writing that the hearsay is substantially reliable.” In effect, this means that a person can be found in violation based upon information learned by a probation officer from third party sources or simply from the introduction of the police report from the new offense so long as the court finds that the information contained within it is “reliable.” While some judges will not find a probationer in violation based upon a new offense if the officers/victims/witnesses are not present to testify, many judges consider the evidence to be sufficiently reliable just based upon the police report. If there is a full hearing in which witnesses testify, it is beneficial to have a lawyer – ideally the same lawyer who is representing you on the new offense – to cross-examine the witnesses to not only argue that there is not enough evidence to prove a violation of your probation, but also to get helpful information for the defense in the new case. You may present witnesses or exhibits on your behalf at a probation violation hearing, so it is best to work with a probation violation hearing lawyer to properly prepare for the hearing.
If you are not found in violation, then the probation continues unaffected. However, if you are found in violation of your probation, then the judge will sentence you on the underlying probation case. Even if the parties agree as to the recommendation, the judge does not have to go along with it. Ultimately, the judge could dismiss/terminate the probation or sentence a person to jail for up to the maximum allowed by law, or anything in between. A benefit of stipulating to a violation is that oftentimes the probation department will be more lenient in its recommendation and a judge might be more willing to go along with an agreed-upon recommendation. But there is no guarantee. This is why it is best to have a probation violation hearing attorney conferencing the matter with the probation officer, presenting arguments on your behalf, and representing you at the hearing before the judge. Not only will collaborating with an experienced lawyer benefit you at the probation violation hearing, but it will also best position you to get the possible result on the new offense that triggered the probation violation hearing. Contact Attorney Michael Thaler at 781-366-0806 or mike@thaler.law to receive a free consultation about your particular probation violation hearing circumstances.