Starting in September Massachusetts will be implementing new rules for probation violation and detention hearings. The proceedings effected are what are currently known as preliminary probation hearings and final probation surrender hearings. The former will be called a probation detention hearing. The latter will be referred to as a probation violation hearing. A new set of procedural rules will be enacted and evidentiary standards have been somewhat modified. These rules will apply to the Boston Municipal Court and the Massachusetts District Courts. The rules changes are subtle. They do however have more organized and just feel about them. Some of these rule changes are discussed below.
Procedural Changes to the Probation Violation Rules (Rule 3)
- Charged with a new offense in one district court and on probation in another district court
Let’s say you are on probation in Lawrence and pick up a new case in Lowell. The probation department in Lowell must notify the probation department in Lawrence of the new offense. Lawrence then has one hour to respond and let Lowell know whether they want you held and transported to Lawrence or whether to set a date for you to appear on your own. You can be held in custody for this hour waiting period. The judge in Lowell can also extend this waiting period and wait longer for a response. If Lawrence doesn’t respond within an hour the judge in Lowell makes a decision; either to have your transported to Lawrence or released. Regardless of the recommendation of the probation court (Lawrence in this case) you have the right to be heard. The judge does not have to agree with the probation officer’s recommendation and request.
- Charged with a new offense in one district court and on probation in more than one other district court
Here is how this is supposed to work. Let’s say you are charged with a new case in Brockton and you are on probation in Newburyport and Ayer. The judge in Brockton picks one of the other courts and follows the same procedure at in paragraph 1 above. The other courts where you are on probation initiate a violation proceeding by issuing a warrant or sending a notice with a return date.
- Charged with a new crime in a district court or a superior court and on probation in a court in a different department
Massachusetts distinguishes certain courts with the designation “department”. For the purpose of new probation hearing law two department are impacted; the superior court department and the district court department. Under this section of the procedural changes, let’s say that you are indicted for a crime in the Essex Superior Court and you are on probation in the Framingham District Court. The Essex Superior Court Probation Department must notify Framingham once they become aware of the fact that you are on probation in that court.
Probation Detention Hearings (Rule 5)
Once a judge finds probable cause to believe that a probationer has violated a condition of probation a determination on detention is made. There are several options available to a judge. The probationer can be held in custody pending the probation violation hearing. The probationer may be released. Conditions of release can be imposed. Those conditions can be similar to conditions of release imposed under the bail statute. This aspect of the new rule parallels the current rule.
Waiving a Probation Violation Hearing (Rule 6)
A probationer can waive his right to a probation violation hearing. The waiver is a two part process. You must first admit that you committed one of the violations referenced in the probation violation notice. Next, you must waive your right to the probation violation hearing. The judge will likely engage you in a colloquy whereby you will be advised about the nature of your waiver and its potential consequences. The waiver becomes final. The judge can then impose sentence. At that point, for the most part your rights will terminate.
Hearsay and Probation Violation Hearings (Rule 7)
Hearsay remains a sufficient way to establish proof that you have violated your probation. The judge however must make a written finding that the hearsay is substantially reliable. This might prove to be the most significant change to the current rules. No longer will probation violations by proved by unscrupulous probation officers simply telling the judge that you violated your probation for reasons that cannot be challenged. Rather, the hearsay on which the probation officer relies must be substantiated in some concrete manner.
Massachusetts Probation Violation Defense Attorney
Call Attorney Stephen Neyman at 617-263-6800 or send us an email now if you are facing a probation violation hearing. We can help you.