Probation violations






Overview of probation surrender hearing



If your probation officer believes  that you have violated a term or condition of your probation, the PO will serve you with notice of probation surrender that lists the ways that you have allegedly violated your probation. If the PO wishes to try to have you held in custody pending the final surrender hearing, he/she can ask for a preliminary surrender hearing. If the PO can show that there is probable cause to believe that you violated your probation, a final surrender hearing will be scheduled. The final surrender hearing is a court proceeding where the PO tries to convince the judge by proponderance of evidence standard, that you have violated your probation. Evidence such as live witness testimony or police testimony based on their own observations, drug test results and police reports are common examples.



Admissability of hearsay evidence at final surrender hearings



Unlike at trial, hearsay is admissable at the probation surrender hearing. A common way that hearsay is used against the probationer is when the probation officer introduces the contents of a police report into evidence instead of having the police officer who wrote the report testify in person. Hearsay is allowed under RULE 6(a) of the District Court Rules for probation violation hearings.



Sufficiency of hearsay evidence in proving a violation



The more important issue is not whether the hearsay evidence is admissable, but whether the admitted hearsay is legally sufficient to prove a violation when the hearsay evidence is the ONLY evidence of a violation. Hearsay is legally sufficient to prove a violation when such evidence is  (1) "substantially trustworthy" and "demonstrably reliable"  (2) when the alleged violation is criminal conduct and (3) the probation officer has "good cause" for proceeding without a live witness with personal knowledge. A good lawyer helps your case by showing the judge the ways that hearsay evidence is not substantially trustworthy by pointing out ways the allegations in the report are uncorroborated, not observed by police, not provided by disinterested witness, and are conclusionary instead of based on detailed facts.




Contact an experienced probation violation attorney


If you have been asked to attend a probation surrender hearing in Boston or Massachusetts, contact criminal defense Attorney Michael St. Louis at 781-816-3950 for your free consultation or contact us online.


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Attorney at Law