News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Massachusetts Reforms to Probation Violation Proceedings Help Avoid Unnecessary Detention

This is the second in our series of posts about changes in the rules that govern proceedings for defendants charged with violating probation in Massachusetts state court.  For Part 1 of this series, click here.

In addition to changing some of the language of the rules to avoid confusion, the new procedures give the courts new authority to release defendants on conditions, which should help avoid unnecessary detention of defendants accused of violating probation.

The new rules correct confusing ambiguity between “preliminary” and “full or final” probation hearings and specifically provide for two separate hearing procedures – a “probation detention hearing” and a “probation violation hearing” – and set forth specific rules for each type of hearing.

In a probation detention hearing, held immediately following an alleged violation of probation, the court must determine “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.”  A probation detention hearing may be conducted at the initiative of the court or the probation department.  For good cause, the court may order that the probationer be detained in custody pending the detention proceeding.  If no judge is available a magistrate can conduct a hearing but the magistrate’s custody order is only valid until the date the judge will next be present, on which date the judge will have to conduct a fresh detention hearing.

Probation detention hearings must be conducted in the courtroom on the record and afford the probationer a number of rights.  The probationer is entitled to counsel and a reasonable time to prepare for the hearing.  At the hearing, the probation officer (with or without assistance of DA) is required to present evidence to support a finding of probable cause, and the probationer is entitled to be heard in opposition, and may submit relevant evidence.  Importantly, in cases involving criminal charges, the criminal court’s finding on probable cause to issue charges does not bind the probation court in its determination of whether there is probable cause to find a probation violation because, in most cases, a criminal defendant does not have the opportunity to fully and fairly contest a criminal probable cause determination.

If probable cause is found, the court may order the probationer to be held in custody pending completion of the violation hearing, which can be held as many as 30 days after the detention hearing.  The factors the court may consider include: the probationer’s criminal record; the nature of the offense leading to probation; the nature of the newly-charged offense (if any); the nature of any other pending violations; the likelihood of the probationer’s appearance if not held; and the likelihood of incarceration if a probation violation is found.  In contrast to the prior rule, which expressly precluded bail for probation violations, the court is now permitted to order conditions of release including bail as provided for in the specific court’s standing orders.  This is a significant change, which will have positive consequences for criminal defendants. Under the old rules, the court had only two choices pending the final violation hearing: it could release the defendant, or it could order him held until the next hearing.  Now, a court has other tools to address any concern that the defendant will fail to turn up for the next hearing or will commit additional crimes, which should make orders of detention much less frequent.  This is a sensible change, giving judges discretion to make choices that are fair to defendants without putting community safety at risk.  The change also eliminates a discrepancy between these rules and procedures in the Boston Municipal Court, which has separate rules from the district courts operating elsewhere in the state, and which has allowed bail on probation violations for some time.

The rules for the probation violation hearing have not been amended dramatically, but specifically remove language suggesting “flexibility and informality” because the “reference was deemed unnecessary and the possible source of inappropriate informality.”  In such a hearing, the court continues to engage in a two-step process, first addressing whether a violation occurred and then determining the disposition.  The court must find by a preponderance of the evidence that the probation violation occurred.  The testimony of the probation officer must be taken under oath.  The probationer is entitled to counsel and any waiver of that right must be knowing and voluntary.  The probationer is entitled to present evidence and cross-examine witnesses.  Alternatively, the probationer may admit to the violation and seek to be heard only as to the disposition—that is, whether he will be returned to probation, on the same or with additional conditions, or sent to jail.  The admission must be knowing and voluntary, and is different from a criminal guilty plea in that it cannot be subject to any conditions (i.e., plea bargain) and does not require a formal colloquy.  Unless based on an admission, any disposition requires written findings of fact.

An additional change regarding the conduct of detention hearings relates to the hearsay rule.  The rule continues to say that hearsay is admissible in probation hearings.  However, the new rule removes the two-prong test to determine legal sufficiency of hearsay evidence.  Before, it had to be demonstrated that the hearsay was substantially reliable and, in cases where the basis for violation was criminal charge, that there was good cause for the absence of percipient witness.  Under the new rules, there is no good cause requirement.  However, the court must find that any hearsay relied upon is substantially reliable, even when the court also relies on nonhearsay evidence, which is a change from the prior rule.

These reforms to the probation violation rules provide probationers with clarity and important rights in detention proceedings, and also may result in fewer unnecessary detentions due to the new option for bail pending the outcome of probation violation hearings.

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