PROBATION VIOLATION COURT PROCEDURE
By: Sandra Norman-Eady, Senior Attorney
You wanted to know who bears the burden of proof at hearings to determine probation violations. You also wanted to know how Connecticut's procedure differs from the federal procedure.
The state Supreme Court has construed Section 53a-32 of the Connecticut General Statutes as requiring bifurcated probation revocation hearings. During the first part of the hearing, the state must prove by a fair preponderance of evidence that the defendant violated a condition of probation. At this hearing, the state must inform the defendant of the manner in which he is alleged to have violated the conditions of his probation. The defendant then has the right to cross-examine witnesses and to present evidence in his own behalf.
If the court determines that the defendant violated a condition of his probation, then it must proceed to the second part of the hearing, the determination of whether the defendant's probationary status should be revoked. At this second phase of the hearing, the Supreme Court has determined that defendants have the right to address the court before disposition. According to the Supreme Court, the probation revocation hearing is similar enough to the sentencing phase of a criminal trial to require the right of allocution, that is the right of the defendant to make a statement to the court on his own behalf.
The Connecticut Practice Book requires courts to follow the same procedure at probation revocation hearings that they follow when conducting arraignment and pre-trial hearings. This procedure includes a statement of the charges, notification of the right to counsel, a plea, and bail determination.
Under federal law, a court may at any time prior to the expiration or termination of the terms of probation conduct a hearing to determine if a probationer violated the terms of his release. The hearing must be held pursuant to the Federal Rules of Criminal Procedure, which require a two-part hearing if the defendant is held in custody after being arrested on an alleged probation violation. The first hearing is a preliminary hearing to establish probable cause to hold the person and the second is a revocation hearing (18 USCA Sec. 3565). As in Connecticut, federal law requires the government to bear the burden of proving that the defendant violated a condition of his probation. And also like Connecticut, the defendant has the right to address the court before the court determines whether to revoke probation.
CONNECTICUT'S PROBATION REVOCATION
By law, a judge may at any time during the period of probation order the arrest of, or issue a notice to appear to, anyone for violation of the conditions of probation or conditional discharge. Once the defendant is arrested, the court must cause him to be brought before it without unnecessary delay for a hearing on the violation charges. The court must inform the defendant of the way in which he is alleged to have violated the probation conditions and advise him of his right to counsel, cross-examine witnesses, and present evidence in his own behalf.
If the violation is established by a preponderance of the evidence, the court may (1) continue the probation, (2) modify or enlarge the probation conditions, (3) extend the probationary period up to the statutory maximum, or (4) revoke the probation and require the defendant to serve the imposed sentence or a lesser sentence (CGS Sec. 53a-32).
The Connecticut Supreme Court has held that the statute requires courts to (1) conduct an adversarial evidentiary hearing to determine whether the defendant violated a condition of probation and (2) move on to the second phase of the hearing, which requires the court to determine whether the defendant's probation should be revoked (State v. Davis, 229 Conn. 285 (1994)). During the first phase of the hearing, the state must prove that the defendant violated a condition of his probation by a preponderance of the evidence (a "more likely than not" standard). As stated earlier, the defendant has an opportunity to cross-examine witnesses and present his own evidence.
The Supreme and Appellate courts have found that trial courts have broad discretion at the second phase of the hearing when determining whether probation should be revoked (Davis at 289-90 and State v. Johnson, 50 Conn. App. 46 (1998)). Despite this finding, courts have held that probation revocation hearings are similar to sentencing hearings; thus, the Connecticut Practice Book's provision on allocution applies. This provision (Section 43-10 (3)) gives defendants the right to make a statement to the court on their own behalf and present information in mitigation of sentence (see State v. Strickland, 243 Conn. 339 (1997) and Johnson, supra)).
FEDERAL LAW ON PROBATION REVOCATION
Section 32.1 of the Federal Rules of Criminal Procedure provides that whenever a person is held in custody on the ground that he violated a condition of probation the court must afford him a prompt hearing to determine probable cause to hold him for a revocation hearing. The probationer must be given (1) notice of the hearing, its purpose, and the alleged violation; (2) an opportunity to appear and present evidence; (3) upon request, the opportunity to question witnesses; and (4) notice of his right to be represented by counsel.
If probable cause is found, the probationer must be held for a revocation hearing, which must be held within a reasonable time unless waived. At the hearing, the probationer must be given (1) written notice of the alleged violation, (2) disclosure of the evidence against him, (3) an opportunity to appear and present evidence, (4) the opportunity to question adverse witnesses, and (5) notice of his right to be represented by counsel. Federal courts have held that probationers have the right of allocution at revocation hearings (see United States v. Barnes, 948 F. 2d 325 (7 th Cir. 1991) and United States v. Carper, 24 F. 3d 1157 (9 th Cir. 1994)).