As a criminal defense attorney in Bangor, probation comes up a lot in my practice in a number of ways:
• Defendant is already on probation and accused of a probation violation;
• Defendant seeking probation as a form of sentencing alternative;
• Defendants that are sentenced to probation
In this blog entry I explain how probation violations generally work. I tell you what the state has to show under Maine Law, how convincing they need to be, what kind of evidence they can use, and attempt to explain what types of outcomes can occur if the state meets its burden.
The bottom line is this: Many people think probation is a cake walk. It’s not! The State has to show less, can use hearsay evidence, and doesn’t even have to prove new criminal conduct. Once a violation is shown, the Judge has a lot of options and a lot of discretion in potentially fully revoking your probation and making you serve your entire suspended sentence.
I hope you enjoy this entry. My next blog entry will discuss the difficulties in getting bail when you have been accused of a probation violation. Further piling on to this entry’s conclusion.
What does the State have to show?
The state has the burden of showing at least one of the following at the probation revocation hearing:
1) You have been convicted of a new crime during your period of probation (17-A M.R.S.A. § 1206(7));
2) The preponderance of the evidence indicates that you have committed a new crime (17-A M.R.S.A. § 1206(5));
3) The preponderance of the evidence indicates that you inexcusably failed to comply with a condition of probation. (17-A M.R.S.A. § 1206(6))
How convincing does the State have to be?
Unlike a normal criminal proceeding, the State does not have to prove their allegations beyond a reasonable doubt. While the State does have what’s known as the “burden of persuasion,” (See State v. James, 797 A.2d 732 (2002), ¶ 9), they only have to show that the preponderance of the evidence indicates that you either committed a new crime or that you inexcusably failed to comply with a condition of probation. “But wait,” you say, “that’s not fair.” Courts justify the reduced burden by ruling that persons on probation do not have the absolute liberty of ordinary citizens, but only conditioned liberty properly dependent upon observation of special probation restrictions. (See State v. Maier (1980) Me., 423 A.2d 235). Further, finding that since the State assumes the risk probationers will commit a new crime while out of probation, it has an overwhelming interest in being able to imprison probationers without the burden of new adversary criminal trials.
What kind of evidence can the State use?
The Maine Rules of Evidence do not apply to proceedings on probation revocations. (Me. Rule of Evidence Rule 1101(b)(4) – “(b) The rules other than those with respect to privileges do not apply in the following situations … (4) … proceedings on probation or parole violations”). Believe it or not, the State is allowed to present hearsay evidence at probation revocation hearings. But there are limits. While one could write a lengthy essay on the types and extent of the hearsay allowed, the general rule is that hearsay must be inherently reliable hearsay to be admissible. Reliable hearsay is generally considered to include information from police reports, and hearsay evidence that would otherwise be admissible as non-hearsay or an exception to the hearsay rule in the Maine Rules of Evidence.
The court may look at a variety of different factors when determining if hearsay evidence is inherently reliable, including but not limited to the following (See State v. James, 797 A.2d 732 (2002), ¶ 15):
1. Whether the hearsay evidence is corroborated, in whole or part, by live testimony presented at the probation violation hearing or an admission by the probationer;
2. The source of the hearsay including the potential for bias or motive to fabricate, and
3. Whether the hearsay evidence is sufficiently detailed.
What are your rights?
Because revocation hearings have the potential to deprive persons of their liberty, minimum guarantees of due process are necessary. (See State v. James, 797 A.2d 732 (2002), ¶ 12). You have the right to be represented by counsel. (17-A M.R.S.A. § 1206(4)). You have the right to present evidence on your own behalf. Id.. And you also have the right to confront and cross-examine witnesses that are testifying against you. Id..
What happens if you lose your hearing?
There are a number of different things that can happen if your probation is revoked. The court can require you to serve the entire remaining suspended portion of your sentence. That is known as a full revocation. It can also have you return to probation without requiring you to serve any portion of your suspended sentence. But that is very unlikely, otherwise there would be little or no punishment for your violation. Most often, the court will have you serve a portion of your suspended sentence and return to probation afterwards. Because the court has so much discretion, it is difficult to know what they will do. You should know that full revocation is a possibility when deciding whether or not to take any offer put forth by the prosecutor.
The court also has discretion in determining whether or not probation will continue after you serve some of your suspended sentence. For example, if your suspended sentence were 6 months and the state were to prove a probation violation, the Judge could do any of the following and more:
1. Full Revocation – Require you to serve the entire six month suspended sentence. Because you have served your entire suspended sentence, your probation will “terminate” at the end of the sentence. The slang term for this sentence is “six months, probation to terminate.”
2. Partial Revocation with Probation to Terminate – The Court could require you to serve 4 months of your suspended sentence with probation to terminate. You would serve four months and then be finished with probation even though your original sentence should have required you to serve the entire six months. This is pretty rare. If the court does this you should feel somewhat lucky because they would be well within their rights to force you to continue on probation and/or serve more of your suspended sentence.
3. Partial Revocation with Probation to Continue – The Court could require you to serve four months and then continue on probation. If you were to have further violations, the remaining suspended portion of your sentence would only be two months.
4. Probation to Continue a.k.a. “Unconditional Discharge” – The Court could require you to serve no portion of your suspended sentence and continue with probation.