probation revocation hearing in Massachusetts

2026Formal authentication procedures need not be followed in a probation revocation hearing, see Sargent, 98 Mass. App. Ct. at 27, where "standard evidentiary rules do not apply." Commonwealth v. Durling, 407 Mass. 108, 117 (1990).

2025Because the judge had ample basis to conclude that the e-mail messages were authenticated as originating from the defendant, the statements within them were "presumptively reliable" as nonhearsay statements of an opposing party, and therefore admissible at the probation revocation hearing. 7 Durling, 407 Mass. at 118 .

2015The difference between the burden of proof at a criminal trial and the burden of proof required, for instance, at a probation revocation hearing is the reason why the Commonwealth is not barred at a probation revocation hearing from basing the revocation on “evidence of a violation of law of which a probationer has been found not guilty.” Commonwealth v. Holmgren, 421 Mass. 224, 225 (1995).

2015In a probation revocation hearing, the Commonwealth bears a lesser burden. . . . [I]t is proof by a preponderance of the evidence.” Id. at 225-226 . 5 Because the petitioner’s claim is so closely identified with double jeopardy, a petition for relief under G.

2009In Commonwealth v. Durling, 407 Mass. 108, 118 (1990), the court approved the use of hearsay evidence at a probation revocation hearing, declaring that “a showing that the proffered evidence bears substantial indicia of reliability and is substantially trustworthy is a showing of good cause obviating the need for confrontation.” “Substantially reliable hearsay generally falls into the category of ‘conventional substitutes for live testimony, including affidavits, depositions, and documentary evidence.’ ” Commonwealth v. Podoprigora, 48 Mass. App. Ct. 136, 138-139 (1999), quoting from Gagnon v.

2004In the Durling case, we described the Federal due process principles set forth by the Supreme Court in Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon v. Scarpelli, 411 U.S. 778 (1973), for a final probation revocation hearing: “Morrissey and Gagnon establish that the minimum requirements of due process include 1 “(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

2024See, e.g., Commonwealth v. Patton, 458 Mass. 119, 131, 134 (2010) (no error in judge's finding probation violation based at least in great part on hearsay statements alleged victim made to investigators even in face of evidence that witness subsequently recanted).

2024See, e.g., Patton, 458 Mass. at 131, 134-136 (no error in judge finding probation violation based on hearsay statements alleged victim made to investigators, even in face of evidence that witness subsequently recanted).

2023"In a probation revocation hearing, the issue to be determined is not guilt beyond a reasonable doubt but, rather, whether the probationer more likely than not violated the conditions of his probation." Commonwealth v. Kelsey, 464 Mass. 315, 324 (2013). (a).

2020"In a probation revocation hearing, the issue to be determined is not guilt beyond a reasonable doubt but, rather, whether the probationer more likely than not violated the conditions of his probation." Commonwealth v. Kelsey, 464 Mass. 315, 324 (2013).

2014See Commonwealth v. Faulkner, 418 Mass. 352 , 365 n.11 (1994); Commonwealth v. Durling, 407 Mass. 108, 111-112 (1990), and cases cited.

2013See Commonwealth v. Wilcox, supra (“The judge determines whether a violation in fact occurred and, in the court’s discretion, whether the probationer’s conduct warrants imposition of the original suspended sentence, or in the case of straight probation, imposition of a sentence” [citations omitted]); Commonwealth v. Faulkner, 418 Mass. 352, 360 (1994) (“a probation revocation hearing remains a point in the sentencing process”); Rule 7 (e)-(f) of the District Court Rules for Probation Violation Proceedings, supra at 97-98.

2024See Krochta v. Commonwealth, 429 Mass. 711 , 715–718 (1999) (collateral estoppel not available where proceedings have different burdens of proof).

2006Jeopardy does not attach at a probation revocation hearing, Krochta v. Commonwealth, 429 Mass. 711, 713-714 (1999), and a violation may be found even if the defendant has been acquitted of the same conduct after a criminal trial, Commonwealth v. Holmgren, supra at 226-228 .

2013See Commonwealth v. Wilcox, supra (“The judge determines whether a violation in fact occurred and, in the court’s discretion, whether the probationer’s conduct warrants imposition of the original suspended sentence, or in the case of straight probation, imposition of a sentence” [citations omitted]); Commonwealth v. Faulkner, 418 Mass. 352, 360 (1994) (“a probation revocation hearing remains a point in the sentencing process”); Rule 7 (e)-(f) of the District Court Rules for Probation Violation Proceedings, supra at 97-98.

2009The defendant claims that the GPS documents were hearsay and should not have been admitted at the probation revocation hearing because they were not reliable and not substantially trustworthy. “[Ejvidence is admissible at revocation proceedings ‘that would not be admissible in an adversary criminal trial.’ ” Commonwealth v. Wilcox, 446 Mass. 61, 68 (2006), quoting from Morrissey v. Brewer, 408 U.S. 471, 489 (1972).

2009The defendant claims that the GPS documents were hearsay and should not have been admitted at the probation revocation hearing because they were not reliable and not substantially trustworthy. “[Ejvidence is admissible at revocation proceedings ‘that would not be admissible in an adversary criminal trial.’ ” Commonwealth v. Wilcox, 446 Mass. 61, 68 (2006), quoting from Morrissey v. Brewer, 408 U.S. 471, 489 (1972).

2004In the Durling case, we described the Federal due process principles set forth by the Supreme Court in Morrissey v. Brewer, 408 U.S. 471 (1972), and Gagnon v. Scarpelli, 411 U.S. 778 (1973), for a final probation revocation hearing: “Morrissey and Gagnon establish that the minimum requirements of due process include 1 “(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

2026See Commonwealth v. Hartfield, 474 Mass. 474, 484 (2016).

2019Consequently, although a judge cannot rely exclusively on "[u]nsubstantiated and unreliable hearsay" as the "the entire basis of a probation revocation," id ., the judge can revoke probation based on hearsay testimony with "substantial indicia of reliability." Commonwealth v. Hartfield , 474 Mass. 474 , 484 (2016).

2024Id. at 494 .

2023In Olsen, 405 Mass. at 496 , the Supreme Judicial Court left open the question whether evidence should be excluded at a probation violation hearing where it was "the product of police harassment or the result of a police focus to obtain evidence specifically for a probation revocation hearing." Commonwealth v. Simon, 57 Mass. App. Ct. 80, 90 (2003).

2026Instead, the "preeminent 2 concern with respect to the evidence presented and considered at revocation proceedings is its reliability." Sargent, supra at 30, quoting Commonwealth v. Thissell, 457 Mass. 191, 196 (2010).

2025Commonwealth v. Nunez, 446 Mass. 54, 59 (2006).

2024As in his motion for a new revocation hearing, the probationer continues to press the argument his attorney at the probation revocation hearing was ineffective in failing to move to suppress all evidence stemming from the traffic stop, depriving him of an "an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

2024To succeed in obtaining a new probation revocation hearing on the basis of ineffective assistance of counsel, the probationer must demonstrate first that the "behavior of counsel [fell] measurably below that which might be expected from an ordinary fallible lawyer" and second that such failing "likely deprived the [probationer] of an otherwise available, substantial ground of defence." Commonwealth v. Saferian, 366 Mass. 89, 96 (1974).

2024See Haven v. Foster, 26 Mass. 112, 130 (1829) ("In all civil and criminal proceedings every man is presumed to know the law of the land . . ."). (3) The probationer additionally claims that he did not have "fair notice of the charges against him," but he took a different position at the probation revocation hearing, where defense counsel acknowledged that notice was not an issue.

2023"A probation revocation hearing involves a two-stage process, in which a judge first determines whether a probationer violated a condition of probation and then, if so, decides whether the violation warrants revocation." Commonwealth v. Joyner, 467 Mass. 176, 189-190 (2014).

2023"The standard of proof in a probation revocation proceeding is the civil standard of preponderance of the evidence." Commonwealth v. Hill, 52 Mass. App. Ct. 147, 154 (2001).

2023In Olsen, 405 Mass. at 496 , the Supreme Judicial Court left open the question whether evidence should be excluded at a probation violation hearing where it was "the product of police harassment or the result of a police focus to obtain evidence specifically for a probation revocation hearing." Commonwealth v. Simon, 57 Mass. App. Ct. 80, 90 (2003).

2019See id . at 74, 841 N.E.2d 1235 .

2018See Morse , 50 Mass. App. Ct. at 91 n.11.

2016The Appeals Court affirmed, Commonwealth v. Gibson, 87 Mass. App. Ct. 829, 835 (2015), ruling that the judge had provided the defendant a full and fair opportunity to be heard on forfeiture and that the forfeiture order had been warranted based on the defendant’s pattern of threats to counsel.