It seemed like a routine disposition on a domestic violence case in Salem District Court. Fifty-four year old Anthony Rosado received a suspended sentence as a result of a domestic incident last November in Beverly Massachusetts. Rosado's terms of probation included a requirement that he remain drug free and report to his probation officer. Apparently, the terms were too much for the Beverly man and The Salem News reports that two days into his sentence he tested positive for opiates. The News reported that his probation officer also claimed that Rosado tested positive again two weeks later then just stopped showing up. As a result of Rosado's behavior the probation department issued a notice to him to appear in court and face a surrender hearing. On the day of his court hearing, he was detained by the Court Officers after he set off the alarm. A bottle of liquid was ultimately discovered in his sock. The speculation was that Rosado planned to present this urine in an effort to beat the drug test. After a brief hearing he was carted off to Middleton jail pending a final surrender hearing.
In Massachusetts, a probationer has only a conditional liberty interest. See Commonwealth v. Wilcox, 446 Mass. 61, 64 (2006). The probationer must 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. Id., at 64-65. 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. See Commonwealth v. Wilcox, 446 Mass. at 67, see also Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). “The revocation of probation does, however, 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. Commonwealth v. Durling, 407 Mass. 108, 112 (1990); Gagnon v. Scarpelli, 411 U.S. at, 783; Morrissey v. Brewer, 408 U.S. 471, 487-88 (1972). “The hearsay on which the judge relies must be reliable.” Commonwealth v. Nunez, 446 Mass. 54, 58 (2006). The Supreme Judicial Court has written that unlike the confrontation clause, due process demands that evidence be reliable in substance, not that its reliability be evaluated in a particular manner. See Commonwealth v. Given, 441 Mass. at 747 n.9. While the court did not define what it meant by the term “reliable in substance” the high court has set the standards to verify reliability. Evidence that would be admissible under standard evidentiary rules is presumptively reliable for due process purposes. See Commonwealth v. Given, 441 Mass. at 747, see also Commonwealth v. Durling, 407 Mass. at 118; Ohio v. Roberts, 448 U.S. 56, 66 (1980), overturned 541 U.S. 36. Hearsay evidence that is inadmissible under the rules of evidence or statute is inadmissible. See Commonwealth v. Given, 441 Mass. at 743-44.
Thus, if you have received notification that you are facing a surrender hearing you must have an experienced criminal defense lawyer on your side. Knowing the applicable standards and ensuring that the probation department is held to meet their burden is imperative. Most defendants do not go to jail because of the initial charges in district court. They find their way to the house of correction because the probation department maintains that he or she did not fulfill his or her terms of probation. In most cases, there is a reasonable argument that the defendant did not violate the terms of probation and/or that the probation officer has improperly issued a violation notice.
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