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Probation has two primary goals:  (1) to rehabilitate the offender and (2) to protect the community.  In Massachusetts, any defendant may receive probation in place of imprisonment so long as the alleged crime does not impose a mandatory minimum sentence.

Probation terms are determined exclusively by a trial court judge who has “broad discretion to impose conditions of probation which are reasonably calculated to control the conduct of the defendant.”[1]

(A probation officer cannot add to or modify a judge’s terms.) 

The conditions imposed should relate to the crime at issue as well as the defendant’s particular challenges (e.g., drug abuse, domestic conflict, etc.).

Moreover, the conditions must be put in writing in a way that is clear and understandable. 

The conditions imposed by the judge will create what’s informally referred to as a “probation contract.”  This document will be signed by the defendant and the probation officer assigned to oversee him.

The probation officer ensures that the defendant adherents to his probation terms.  The officer also has the authority to report probation violations to the court and, if necessary, ask the court to revoke the probation.

Generally, there are two types of probation violations. 

The first type, referred to colloquially as “technical violations”, involve failing to comply with probation terms.  This could include failing to attend substance or alcohol abuse treatment, travelling outside of or into a designated region, failing a drug screening test, etc.

The second type of probation violation arises when the probationer is charged with a new crime.

If either type of violation occurs, the probation officer will move to “surrender” the probationer to court.  This is done by providing the probationer with a “notice of probation violation.”  If there is a technical violation, the probation officer will likely mail notice to the probationer or deliver it to him in-hand.  However, if the violation is due to a subsequent offense, then notice will be given to the probationer prior to or at his arraignment.

The probation officer’s allegations will be brought against the probationer in two separate hearings. 

The first hearing is known as the “detention hearing.”  The purpose of this hearing is to determine whether probable cause exists to proceed against the probationer for a violation of his probation terms.  This hearing will often take place on the same day as arraignment if the violation involves a new crime. 

If a trial judge determines that probable cause does exist, a probation violation hearing will be scheduled.  (The judge may use his discretion to determine whether the probationer should be detained between the detention hearing and the probation violation hearing.)

At the probation violation hearing, the probationer will have the opportunity to present evidence, cross-examine the state’s witnesses, and challenge the evidence against him. 

Hearsay evidence is admissible.  However, it must be “substantially reliable” as defined by the SJC in Commonwealth v. Durling.  Hearsay can be admitted in a probation violation hearing if the hearsay

  • is based on personal knowledge and/or direct observation rather than on other hearsay;
  • involves observations recorded close in time to the events in questions;
  • is factually detailed rather than generalized and conclusory;
  • is internally consistent;
  • is corroborated by any evidence provided by the probationer;
  • was provided by a disinterested witness; or
  • was provided under circumstances that support the veracity of the source (e.g., was provided under the pains and penalties of perjury or subject to criminal penalties for providing false information.)

Moreover, in most cases, the probationer has a right to call witnesses (including alleged victims) as part of his defense.[2]

The proceedings are governed by the Massachusetts District/Municipal Court Rules for Probation Violation Proceedings

In addition to the rights mentioned above, the U.S. Supreme Court has held that anyone accused of violating his probation is entitled to

(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of the evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole.

Morrissey v. Brewer, 408 U.S. 471, 489 (1972).

If the judge is convinced, based on a preponderance of the evidence presented at the hearing, that probation violation has occurred he has a number of options.  He can

  • Revoke probation and order the probationer’s detention
  • Revise of modify the terms and conditions of the probation, or
  • Keep the existing terms of the probation despite the violation.

If the probationer’s probation is revoked, he will have the right to appeal the decision.

[1] Commonwealth v. Williams, 60 Mass. App. Ct. 331 (2004)

[2] See Commonwealth v. Hartfield, 474 Mass. 474