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.

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.)

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).

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.
   

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  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);
  
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  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);
  
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  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.