Section Review

Introduction

The convergence of the commonwealth’s already overextended criminal detention system with the present economic downturn will undoubtedly result in further overcrowded conditions. Due to this disproportionate burden on prisons, there will likely be increased scrutiny on decisions to turn probationers into prisoners. In other words, there will be institutional pressure for all the stakeholders in the probation system to “get it right.” Already, some practitioners are seeing — in Middlesex County and no doubt elsewhere — increased requests by probation departments for assistance by prosecutors in handling probation violation matters to address the procedural and substantive issues typically raised during these hearings.¹ The unique mechanisms involved in the review and potential revocation of probation during these hearings bear repeating.

The general authority to impose probation and conditions

The authority of a court to impose probation flows generally from its broad sentencing power,² and more specifically, from a number of probation-related statutes.³ When ordering probation, a court can impose conditions that “may include, but shall not be limited to, participation by said person in specified rehabilitative programs or performance by said person of specified community service work for a stated period of time.”⁴ In the Superior Court, the conditions must at a minimum include compliance with all court orders, periodic and prompt reporting to probation, seeking and maintaining employment, providing support to one’s dependents, and obeying all criminal laws, ordinances and regulations.⁵ A “supervision” or “administrative” fee must also be assessed on each probationer.⁶ Furthermore, the conditions of probation may be modified by a judge where there is a change in circumstances and where the modification does not amount to a new punishment.⁷ The length of the probationary period may be for whatever period of time the court, in its discretion, deems “appropriate” or “proper.”⁸ The time period may be later extended, but only if it is done within the original period or within a reasonable time after the end of the probation.⁹

Only a judge may set the conditions of probation, not a probation officer.¹⁰ The conditions of probation should be primarily directed at the rehabilitation of the probationer and the protection of the public, but they may also serve the goals of punishment, deterrence and retribution.¹¹ Even conditions that affect legal or constitutional rights may be imposed, so long as they are adequately clear and not “vague.”¹² For example, a court may impose a condition that no alcohol may be consumed even where alcohol was not a factor in the case¹³ and can require the probationer to participate in sex offender treatment even though a probationer may be required by the treatment provider to make admissions of criminal behavior.¹⁴ The court can also restrict a probationer’s association with certain persons or groups of people,¹⁵ though a restriction prohibiting a defendant from entering the Commonwealth would generally be invalid.¹⁶

Violation of probation procedures: Notice, hearing and standard of proof

 By and large, probation violation proceedings¹⁷ are governed by court rules. While a number of statutes set forth the general power of the courts to impose and revoke probation, court rules provide the authority for probation officers to arrest for alleged violations.¹⁸ The rules also detail the step-by-step process involved in initiating, deciding and disposing of an alleged probation violation, whether it be based upon a new criminal charge or a broken condition of probation. A sizable body of case law (some of which is discussed in this article) has helped refine and fine tune the process.

A probation violation proceeding may be initiated when a probation department issues and serves a written notice on a probationer¹⁹ at his or her arraignment on a new criminal charge.²⁰ The notice must be given in hand, state the nature of the new criminal violation, and specify the date, time and place of the hearing for the alleged violation (no sooner than seven and generally within 30 days of the service of notice).²¹ If the arraignment takes place in the court in which the probationer is on probation, the hearing normally will be held on the pretrial conference date scheduled for the new offense.²² Otherwise, the arraigning court will notify the probation court of the new charges and will schedule a hearing in the probation court for the appointment of counsel²³ and commencement of violation proceedings in that court (giving notice of the same to the probationer).²⁴

The notice procedure is somewhat different if the basis of the alleged violation is non-criminal behavior that amounts to a breach of a condition of probation or other misconduct.²⁵ In such cases, a written notice is served in hand or mailed first class (returned receipt) to the probationer setting forth the condition(s) alleged to have been violated and indicating the date, time and place of the hearing for the appointment of counsel and scheduling of a violation proceeding.²⁶ At this first appearance date, the probation violation hearing generally will be scheduled for between seven and 30 days after the initial appearance.²⁷ While a continuance may be granted for good cause shown, it may not be granted because of the pendency of an underlying criminal case, and no general continuances are permitted.²⁸

At the probation violation hearing, the court must determine two separate and distinct issues: first, whether a violation in fact has occurred; and if so, what disposition should be imposed.²⁹ All testimony at the hearing must be presented under oath.³⁰ The probation officer is responsible for the presentation of the case with or without the assistance of the local district attorney.³¹ Both the probation department and the probationer may present evidence, cross-examine witnesses and make closing statements.³² Most importantly, the burden of proof is on the probation officer to prove that the violation occurred by a preponderance of the evidence.³³

Notably, the rules of procedure contain a separate section governing the admissibility of hearsay evidence at a probation violation proceeding, and it is an area of probation law that has been widely litigated.³⁴ In general, the rules permit the introduction of hearsay evidence, much of which in the normal course is typically not subject to a dispute about reliability or veracity.³⁵ However, where the sole basis for the violation is hearsay, the rule specifically excludes the proffered evidence unless the court in writing finds that the evidence is “substantially trustworthy and demonstrably reliable.”³⁶ The rule imposes an additional requirement that where the violation is based upon criminal conduct, the probation officer must show “good cause” for proceeding without the witness who has personal knowledge of the proffered evidence.³⁷

Dispositions

If, after a hearing as outlined above, the court has found that a factual basis for a violation has been proven, the court must next exercise its considerable discretion and determine whether revocation of probation is warranted or whether some other action is more appropriate given the facts of the violation and personal circumstances of the probationer.³⁸ The court must make express findings of fact and enter them on the record in writing, detailing the evidence relied upon for its decision.39 It must give the probationer an opportunity to present evidence and to propose “dispositional terms.”⁴⁰ Thereafter, the court must impose one of the following dispositions (taking into consideration the probation officer’s recommendation, public safety, victim impact and other specified factors⁴¹):

a) continue the terms of probation as it deems appropriate;

b) terminate the probationary conditions and period;

c) modify the probationary terms, including adding conditions and/or extending the term of probation; or

d) revoke the probation, stating the reasons why in writing.⁴²

 

If the court orders that probation be revoked, the court shall order the execution of any suspended sentence then in effect be imposed, or, if no sentence was imposed after the probationer’s conviction on the underlying offense, the court shall impose any sentence authorized by law.⁴³ Either party aggrieved by the decision of the court may take a direct appeal to the Appeals Court by filing a notice of appeal within 30 days of the court’s action.⁴⁴

Conclusion

The aim of probation, among other things, is to provide the framework for the encouragement and enforcement of rehabilitative efforts extended to or imposed upon those previously adjudicated responsible for criminal wrongdoing. In many instances it provides a necessary safety net to probationers as they negotiate the road toward a crime-free future.⁴⁵ Given the importance of this indispensable judicial tool, there can be little doubt that “probation violation proceedings” are among the most significant matters handled by the courts of the commonwealth.⁴⁶ Indeed, these proceedings afford both substantive and procedural due process protections to probationers, provide an expeditious means of addressing missteps — both small and large — by probationers, and help ensure continued public trust and confidence in the judicial system’s ability to respond appropriately to alleged probation violations.⁴⁷

For probation violation proceedings to remain credible, probationers must believe that not only will they be treated fairly if they transgress, but that the citizenry expects that their probation cases will be processed swiftly and appropriately based on the nature and extent of the violation at issue. Most importantly, judges, probation officers and the public need to understand and trust that criminal practitioners — prosecutors and defense counsel — are up to the task of ably and zealously representing their respective clients whose rights and interests are at stake. The former is in place and rests on a firm foundation of established rules and reasoned case law. The latter is up to the dedication, commitment and interest of the members of the criminal bar.

Endnotes

1. Dist. Crt. R. Prob. Viol. Proc. 5(f) permits prosecutors to aid, but not interfere with, probation officers in their presentation of probation cases to the court; see also BMC Standing Order 2-04 VI(f); Commonwealth v. Negron, 441 Mass. 685, 686-87 (2004) (stating that the separation of powers doctrine allows “an assistant district attorney [to] participate in probation hearings by providing legal representation to the probation department without interfering with that department’s internal functioning”); Commonwealth v. Tate, 34 Mass. App. Ct. 446, 447-48 (1993) (same).

2. See e.g., Commonwealth v. Power, 420 Mass. 410, 413-14 (1995).

3. M.G.L. c. 276, § 87 (2008) (authorizing a district, juvenile, or superior court to place a defendant on probation “after a finding or verdict of guilty”); M.G.L. c. 279, §§ 1, 1A (2008) (deciding that a court may place on probation any defendant who has received a suspended sentence, a fine, or a stay of the execution of a sentence); M.G.L. c. 119, § 58 (2008) (allowing any child adjudicated as a “youthful offender” to be placed in the care of a probation officer until the age of twenty-one).

4. M.G.L. c. 276, § 87A (2008) (indicating that such conditions are applicable to probation imposed pursuant to M.G.L. c. 119, § 58, M.G.L. c. 276, § 87, and M.G.L. c. 279, §§ 1 and 1A).

5. Superior Court Rule 56.

6. M.G.L. c. 276, § 87A (2008) (stating that probation fees may only be waived after hearing and written finding of “undue hardship” due to limited income, employment status, or any factor).

7. See, e.g., Commonwealth v. Morales, 70 Mass. App. Ct. 839, 843-44 (2007) (finding that where the defendant was a convicted child sex offender, and there was a material change in circumstances after sentencing by him being designated a “sexually dangerous person,” the added condition that the defendant not reside near minor children was “not so drastic” to constitute a changed sentence and was a reasonable non-punitive measure consistent with the original terms of his sentence); Buckley v. Quincy Div. of Dist. Ct. Dep’t, 395 Mass. 815 (1985) (reaffirming that, as a matter of established common law, terms and conditions of probation may be modified from time to time “as a proper regard for the welfare, not only of the defendant, but of the community…” (internal quotation and citation omitted)).

8. M.G.L. c. 119, § 58 (2008) (“for such time and on such conditions as it deems appropriate”); M.G.L. c. 276, § 87 (2008) (“for such time and on such conditions as it deems proper”); see also M.G.L. c. 279, §§ 1, 1A (2008) (“for such time and on such terms and conditions as it shall fix”),

9. Commonwealth v. Mitchell, 46 Mass. App. Ct. 921, 922 (1999) (further appellate review denied) (“[T]he court’s power to extend or revoke a defendant’s probation after the expiration of its original term because of the defendant’s failure to comply with one or more of the conditions of his probation . . . during the term turns on whether both the probation officer and the court act with reasonable promptness in light of all the circumstances of the particular case, including the possibility of specific prejudice to the defendant resulting from delay in bringing matters to a head.”). Compare id. (deeming a two and one-half year lapse of time to take action on a probation violation unreasonable) with Commonwealth v. Sawicki, 369 Mass. 377, 384-87 (1975) (deeming reasonable a six month delay from end of probation until extension). See generally, M.G.L. c. 279, § 1 (2008); M.G.L. c.119, § 59 (2008); Superior Court Rule 57.

10. Commonwealth v. MacDonald, 50 Mass. App. Ct. 220, 223 (2000) (“[I]t is the function of the sentencing judge to set the conditions of probation.” (internal quotations and citations omitted)); see also Commonwealth v. McDonald, 435 Mass. 1005, 1006-1007 (2001) (holding that a probation officer could not expand the terms of probation by adding a “no contact” order” to the “stay away” order imposed by the sentencing judge); Commonwealth v. Lally, 55 Mass. App. Ct. 601, 603 (2002) (holding that the defendant could not be found in violation of the terms of his probation for refusing to undergo random drug screens as required by his probation officer where the sentencing court only imposed the condition of substance abuse treatment if necessary).

11. Commonwealth v. Power, 420 Mass. 410, 414-15 (1995) (reaffirming the multiple goals of probation).

12. Id. (upholding the special condition that the probationer not profit from the sale of her story despite the potential First Amendment implications).

13. Commonwealth v. Williams, 60 Mass. App. Ct. 331, 332 (2004) (finding that because it was related to the goals of probation, the condition that the probationer refrain from any use of alcohol was valid despite the fact that his criminal case did not involve any evidence of his alcohol use or abuse

14. Commonwealth v. Brescia, 61 Mass. App. Ct. 908, 909 (2004) (stating that although the probationer was required to attend sex offender treatment as a condition of his probation and despite the fact that the treatment provider could terminate him for refusing to make admissions of criminal conduct, the condition did not amount to compelled self-incrimination because revocation of his probation was not an automatic result of his refusal to make those admissions).

15. Commonwealth v. Lapointe, 435 Mass. 455, 459 (2001) (upholding probation condition preventing the probationer from living with any of his minor children, current or future, even though it affects his right to association because the condition was reasonably related to the goals of probation; see also Commonwealth v. Kendrick, 446 Mass. 72, 75-77 (2006) (upholding condition that the probationer have no contact with children under 16 and that he avoid any locations where he might come into contact with children under 16).

16. Commonwealth v. Pike, 428 Mass. 393, 401-05 (1998) (stating that conditions that infringe on constitutional rights must be reasonably related to the goals of probation and banishment from the state does not relate to any of the goals of probation).

17. The commentary to Rule 1 of the District Court Rules for Probation Violation Proceedings aptly makes the distinction between referring to the proceedings as “violation proceedings” and not “revocation proceedings.” Correctly, the author of the commentary points out that referring to the proceedings as “revocation proceedings” presupposes that a violation has in fact occurred and that a revocation determination is the only issue being adjudicated. Indeed, the purpose of a probation proceeding is to decide first if a violation has occurred and then whether probation should be revoked or altered. Accordingly, the rules and this article refer to the process as “probation violation proceedings.”

18. See M.G.L. c. 119, § 58 (2008); M.G.L. c. 276, §§ 83-103 (2008); and M.G.L. c. 279, §§ 1, 1A (2008).

19. The same general rules apply whether the probation order was imposed after a finding of guilt or a continuance without a finding but not when pretrial probation is imposed. Dist. Crt. R. Prob. Viol. Proc. 1.

20. Dist. Crt. R. Prob. Viol. Proc. 3 (b). It is also important to note that the district court rules provide that upon a finding of probable cause that a probationer has violated a condition of probation and that he or she should be held in custody pending a hearing, the probationer shall not be admitted to bail. See Dist. Crt. R. Prob. Viol. Proc. 8 (d). In contrast, the BMC rules permit alleged probation violators to be admitted to bail in the discretion of the court. See BMC Department Standing Order 2-04 V (a).

21. Id.

22. Id.

23. A probationer facing a potential violation has a right to counsel. Commonwealth v. Faulkner, 418 Mass. 352, 359-360 (1994).

24. Dist. Crt. R. Prob. Viol. Proc. 3 (c). The district attorney’s office must also receive notice of all probation violation proceedings so that it may exercise its statutory rights and fulfill its statutory obligations. See M.G.L. c. 258B § 3; M.G.L. c. 279, § 3 (2008); Dist. Crt. R. Prob. Viol. Proc. 3 (b), (c); Dist. Crt. R. Prob. Viol. Proc. 4 (b).

25. This decision may be made by a probation officer “in accordance with the rules and regulations of the Office of the Commissioner of Probation” or by a judge or the court supervising the probationer. Dist. Crt. R. Prob. Viol. Proc. 4 (b). On a related issue, the Appeals Court held that a probation violation and revocation was properly based upon non-criminal conduct committed by the defendant before the official start of his probation but while he was serving a preceding committed sentence. Commonwealth v. Ruiz, 71 Mass. App. Ct. 578, 582-85 (2008) (“That certain conditions activate upon the defendant’s release to probation after a prison term does not mean that, upon the sentencing orders being imposed, certain other probationary conditions are not immediately activated and in effect during a prison sentence as well as in the subsequent, post-prison probationary term.”).

26. Dist. Crt. R. Prob. Viol. Proc. 4 (c).

27. Dist. Crt. R. Prob. Viol. Proc. 4 (d).

28. Dist. Crt. R. Prob. Viol. Proc. 5 (e); Dist. Crt. R. Prob. Viol. Proc. 7 (a).

29. Dist. Crt. R. Prob. Viol. Proc. 5 (b); see also Commonwealth v. Arroyo, 451 Mass. 1010, 1011 (2008).

30. Dist. Crt. R. Prob. Viol. Proc. 5 (a).

31. Dist. Crt. R. Prob. Viol. Proc. 5 (c).

32. Id. Additionally, because a probationer has a liberty interest at stake, due process requires advance “disclosure of the evidence against him or her.” Commonwealth v Wilcox, 446 Mass. 61, 66 (2006). It would appear, at a minimum, this discovery would include names, addresses and dates of birth of witnesses to be called, any police reports, copies of all documents to be introduced at the hearing, and any exculpatory evidence available.

33. Id.; see also Commonwealth v. Holmgren, 421 Mass. 224, 225-28 (1995) (holding that a probation violation may be based upon evidence of a criminal violation even if the defendant has been acquitted of the charge because proof that a violation has occurred must only be proven by a preponderance, where a criminal conviction requires proof beyond a reasonable doubt).

34. Dist. Crt. R. Prob. Viol. Proc. 6; see generally Commonwealth v. Harrigan, 53 Mass. App. Ct. 147 (2001); Commonwealth v. Calvo, 41 Mass. App. Ct. 903 (1996); Commonwealth v. Joubert, 38 Mass. App. Ct. 943 (1995); Commonwealth v. Delaney, 36 Mass. App. Ct. 930 (1994); Commonwealth v. Commonwealth v. Durling, 407 Mass. 108 (1990);

35. See Dist. Crt. R. Prob. Viol. Proc. 6 (a), including commentary (explaining that evidence qualifying under legal exceptions to the hearsay rule, such as business records, excited utterances, and dying declarations, are presumptively reliable and admissible at probation violation hearings). Furthermore, due process only requires that hearsay evidence presented at a probation violation hearing be “substantially reliable.” Commonwealth v. Wilcox, 446 Mass. 61, 70-71 (2006) (holding that Sixth Amendment confrontation rights are not applicable to probation revocation proceedings).

36. Dist. Crt. R. Prob. Viol. Proc. 6 (b).

37. Id.; Commonwealth v. Durling, 407 Mass. 108, 114-20 (1990) (finding that proffered hearsay was reliable where separate detailed police reports contained fact-based observations by two officers — and not mere conclusions — and finding that “good cause” was shown for not presenting live witnesses because it would have been inconvenient to produce live testimony); see also Commonwealth v. King, 71 Mass. App. Ct. 737, 740-42 (2008) (stating that where hearsay is the only source of the violation, the reliability of the evidence must be substantial, thus satisfying the “good cause” requirement for not having live witnesses, but where the reported hearsay contained limited personal observations by police and describes the victim as being sarcastic and unaffected by the alleged assault, the reported hearsay was not sufficiently reliable and trustworthy to support a finding of a probation violation).

38. Dist. Crt. R. Prob. Viol. Proc. 5 (d) and commentary.

39. Dist. Crt. R. Prob. Viol. Proc. 7 (c).

40. Dist. Crt. R. Prob. Viol. Proc. 5 (d).

41. Dist. Crt. R. Prob. Viol. Proc. 7 (d). A court, however, may not rely upon conduct occurring after the end of the probationary period in deciding what disposition to impose following a finding of a probation violation. Commonwealth v. Arroyo, 451 Mass. 1010, 1011 (2008).

42. Dist. Crt. R. Prob. Viol. Proc. 7 (e).

43. Dist. Crt. R. Prob. Viol. Proc. 7 (e), (f). A suspended sentence must be put into effect except in two instances: where a stay is granted pending appeal in accordance with Mass. R. Crim. P. 31, or where the court gives the probationer a “brief period of time” to attend to personal matters before being incarcerated. Dist. Crt. R. Prob. Viol. Proc. 7 (e).

44. Commonwealth v. Negron, 441 Mass. 685, 687-688 (2004); see also Commonwealth v. Christien, 429 Mass. 1022, 1022-23 (1999) (allowing for a motion to be filed pursuant to Mass. R. Crim P. 30(a) where the defendant challenges the unlawfulness of the sentence itself).

45. Cf. Commonwealth v. Wilcox, 446 Mass. 61, 64 (2006) (“The purpose of probation rather than immediate execution of a term of imprisonment in large part is to enable the [convicted] person to get on his feet, to become law abiding and to lead a useful and upright life under the fostering influence of the probation officer.” (internal quotation omitted)).

46. Commentary to Rule 1 of the District Court Rules for Probation Violation Proceedings.

47. See generally Dist. Crt. R. Prob. Viol. Proc. 1 and commentary.

Michael Fabbri is an assistant district attorney with the Middlesex County District Attorney’s Office. Presently, he serves as the Framingham regional supervisor, and previously he was deputy chief of the office’s Appeals Bureau.  He is a 1983 graduate of Northeastern University School of Law, a 1980 graduate of Framingham State College and veteran of the U.S. Air Force.