Most people are aware of the standard of proof in criminal cases–proof beyond a reasonable doubt. This means that if a juror or trier-of-fact has a reasonable doubt about your guilt, such as the reasonable possibility that someone else committed the crime or that the evidence presented is not so convincing that you would be “willing to rely and act upon it without hesitation in the most important of your own affairs,” you must be found not guilty. In probation violation hearings, however, this standard of proof does not apply.
In violation of probation hearings, a prosecutor is allowed to use the lesser standard of proof used in civil trials or proof by a preponderance of the evidence i.e. that it is more likely than not that you committed the violation.
What is Probation?
The purpose of probation is to allow you to continue your life without being incarcerated while the court monitors your progress and requires you to participate in certain programs and to refrain from certain activities.
Probation also can mean that the court has suspended a certain portion of your prison or jail sentence contingent upon successful completion of probation. If you are found guilty of a violation of probation when you have a suspended sentence contingent upon successful completion of probation, you will likely be guaranteeing yourself a jail or prison sentence. Be very careful pleading to a suspended sentence. Remember don’t set yourself up for failure because even a minor violation, such as being late for a meeting or missing a class at a court-required treatment program, can result in your probation officer petitioning the court to issue a violation of probation warrant for your arrest.
The Evidentiary Hearing
After being brought before court and denying the violation, you are entitled to an evidentiary hearing. The burden of proving the violation is on the prosecution, which only needs to prove it by a preponderance of the evidence. Other issues at this hearing include the following:
- The prosecutor must show that you were properly advised of your probation conditions. Usually, a document initialed and signed by you is sufficient.
- The violation must be willful and substantial. If you can show that you were late for a meeting or program because of reasonable extenuating circumstances, you may have a viable defense.
- Hearsay is admissible, unlike a trial. It can only be used to support other evidence.
Hearsay is evidence made outside of court, not under oath, that is offered as evidence to prove the truth of the matter asserted. For example, testimony from another person who heard someone else say that they saw you holding up a liquor store, which is the subject of the violation, is hearsay.
Obviously, anyone charged with a probation violation needs knowledgeable and skilled criminal defense representation. In many cases, your attorney can speak to the prosecutor and resolve the matter without you being arrested and held in jail. Hire a reputable probation attorney if you are charged with a probation violation since your freedom and future is at stake.
