According to The Lowell Sun, a 34-year-old Lowell Massachusetts man, who was convicted for motor vehicle homicide and operating under the influence of alcohol causing serious bodily injury six years ago found his way back to prison after serving most of his 5 to 6 year committed sentence. The defendant was released from prison to a five year probationary term. However, this week a Superior Court Judge sitting in Lowell Massachusetts found that the defendant violated the terms of his probation after being arrested on charges of domestic assault and battery and malicious destruction of property in an incident involving his sister-in-law. According to reports, he was sentenced to serve the rest of his two-year jail sentence on his conviction for operating under the influence causing serious bodily injury.
If you have been served with a notice from the probation department that they are looking to surrender you because you violated the terms of your probation it is imperative that you contact an experienced Massachusetts trial attorney. The rules that apply during a probation surrender hearing are different from the rules that apply during a trial.
The Massachusetts Supreme Judicial Court has held that “the due process clause does not place a per se prohibition on the use of hearsay evidence at probation revocation hearings.” Commonwealth v. Durling, 407 Mass. 108, 115 (1990). Rather, “[u]nsubstantiated and unreliable hearsay cannot, consistent with due process, be the entire basis of a probation revocation." The court also considers whether the evidence at the hearing is entirely hearsay and whether there is good cause for not having direct testimony.
In Massachusetts, a probationer has only a conditional liberty interest. The probationer is expected to comply with the conditions of probation. A breach of a condition of probation constitutes a violation, and if the probation officer receives information tending to show that the probationer has breached, the officer may “surrender” the probationer to the court. During a trial, the government must prove its case beyond a reasonable doubt. However, the standard at a probation revocation hearing is lower. A probationer's probation may be revoked based on the probation department establishing a violation by a preponderance of evidence. In Massachusetts, the Courts position is that a probation revocation hearing is not part of criminal prosecution and, thus, a probationer need not be provided with the full panoply of constitutional protections available at criminal trial. However, the Courts have held that the revocation of probation does result in a deprivation of liberty within the meaning of the due process clause of the Fourteenth Amendment to the United States Constitution and thus, the Commonwealth must provide probationers with certain protections at surrender hearings. In Massachusetts, the hearsay on which the judge relies must be reliable.
If you have received notice of a "probation violation" it is important that you contact an experienced Massachusetts trial attorney to represent you at the surrender hearing. Effective representation can result in the court not finding you in violation or if you are found in violation convince the judge not to impose the sanction recommended by the probation officer. In certain situations, the submission of a memorandum opposing the finding of a violation is appropriate.