The Importance of Contesting Evidence in Probation Violation Hearings

The importance of contesting probation violation proceedings based on written submissions cannot be more clear than in a recent case I had in district court.

In Commonwealth v. O.B. (Attleboro D.Ct., August 2024), the Defendant was on probation for assault and battery, causing serious bodily injury. While on probation, he was charged with sex offenses involving the daughter of his live-in fiancé. The probation department moved to have the Defendant’s probation revoked, exposing him to a possible 2 ½ year jail sentence.

The standard to be found in violation of probation (VOP) is very low – a preponderance of the evidence. There are times when a probation officer will simply introduce a police report at a VOP hearing and attempt to convince the judge the police report is sufficient. A police report contains hearsay statements. Although that is permissible to try such an approach in Massachusetts, it is done at the probation officer’s peril.

Although hearsay is admissible in such a proceeding, where the sole evidence submitted to prove a violation of probation is hearsay, that evidence shall be sufficient only if the court finds in writing that (1) such evidence is substantially trustworthy and demonstrably reliable, and (2) if the alleged violation is charged criminal behavior, the probation officer has good cause for proceeding without a witness with personal knowledge of the evidence presented. Massachusetts District Court Rules for Probation Violation Proceedings, Rule 6 (“Rule 6”); Commonwealth v. Durling, 407 Mass. 108 (1990).

What is “good cause” has been defined in terms of the difficulty and expense of

procuring witnesses in combination with “demonstrably reliable” or “clearly reliable”  evidence. Durling, supra at 120. 

Rule 6 requires that in all cases where the only evidence of an alleged probation

violation is hearsay, there must be a finding that the hearsay is substantially trustworthy and demonstrably reliable, and requiring a showing why a live witness is unavailable when the alleged probation violation is based on charged criminal behavior.

There are at least five criteria for the court’s determination of whether a given

piece of hearsay evidence is “substantially trustworthy” and “demonstrably reliable”.  Those are whether the out-of-court statement: (1) is factually detailed, rather than generalized and conclusory; (2) is based on personal knowledge and direct observation by the source, (3) is corroborated by evidence submitted by the probationer, (4) was provided under circumstances that support veracity of the source (e.g., provided under the pains and penalties of perjury); and (5) was provided by a disinterested witness. See Durling, supra at 932 n.4; Commonwealth v. Delaney, 36 Mass.App.Ct. 930, 932 n. 4 (1994)(rescript)(as to factor 5).

As to determining good cause for the absence of a live witness, Durling identifies

three factors: (1) the distance the witness would have to travel to court, (2) the costs the witness would have to incur if the witness were compelled to appear, and (3) the difficulty in scheduling the probation violation hearing a time convenient to the witness and all other participants.

In the O.B. VOP hearing, the probation officer did not call a live witness; rather, he elected to go forward just with the police report and the recorded interview of the alleged victim. Although the court allowed the proceeding to go forward entirely on the hearsay evidence, the court did not find the defendant in violation of his probation. In this case, I had obtained mental health records, school records, and other documents demonstrating that the alleged victim had a significant mental health history and probation made no effort to secure her as a witness, knowing that there was no corroboration of her story. Those factors were noted by the court in its conclusion.

The O.B. case is not unusual when it comes to violation of probation proceedings where the new charge that triggers the probation proceeding is an alleged sex offense. In those cases, my experience is that prosecutions tend to bury their heads in the sand and do not want to learn about inconsistencies in the stories of the alleged victim, the mental health history of the alleged victim, or any other potentially exculpatory evidence. The simple reason is that if such evidence was learned, then it would have to be provided to the defense.