The Hearing

What court will hear my case?

The court in the county in which you are supervised has “jurisdiction” (the legal authority) to hear the motion or petition to modify, revoke, or terminate you probation.[834]

For those on probation, it will be either the court in the county in which you are supervised or the court in the county in which the alleged violation of supervision occurred.[835]

  1. 834

    Cal. Penal Code § 1203.2(b).

  2. 835

    Cal. Penal Code § 1203.2 (b)(1).

Who hears the cases?

Judges, magistrates, or court-appointed hearing officers hear probation revocation cases.[836]

  1. 836

    Cal. Penal Code § 1203.2(b)(1) and (f).

Who represents the interest of probation in the hearing?

The District Attorney (DA), on behalf of the state of California.[837]

  1. 837

    Cal. Penal Code § 1203.2.

What does the prosecutor (D.A.) need to prove?

The prosecutor, also known as the District Attorney (DA), must prove that is more likely than not that you violated probation.[838]

Unlike a criminal trial where the DA must prove the case “beyond a reasonable doubt,” the DA in a probation revocation hearing only needs to prove by a “preponderance of the evidence” that you violated probation.[839]

  1. 838

    People v. Rodriguez, 51 Cal.3d 437, 441 (1990). (“Considerations of both law and policy dictate that the facts in a probation revocation hearing be provable by a preponderance of the evidence. First, constitutional principles permit the revocation of probation when the facts supporting it are proven by a preponderance of the evidence. While no constitutional provision declares a standard of proof for probation revocation hearings, the United States Supreme Court has indicated that due process requires no stricter standard of proof in probation revocation hearings than a preponderance of the evidence.”)

  2. 839

    People v. Rodriguez, 51 Cal.3d 437, 441 (1990).

Do I have a right to notice of the probation revocation hearing?

Yes, unless you waive the notice requirement in writing.[840]

You must be given notice before your first court appearance in the probation revocation proceedings, unless you agreed in writing to a modification (a change) or termination (an end) of a specific term of your supervision.[841]

If you agreed in writing to a modification or termination of a specific term of your supervision, you also do not have to make an in-person appearance in court for the hearing.[842] We suggest that you speak with an attorney or public defender prior to waiving your right to a revocation hearing.

  1. 840

    Cal. Penal Code § 1203.2 (b)(2).

  2. 841

    Cal. Penal Code § 1203.2 (b)(2).

  3. 842

    Cal. Penal Code § 1203.2 (b)(2).

Do I have the right to an attorney at the hearing?

Yes.[843] Before you waive the requirement to personally appear at the hearing or before you accept an offer of modification of your probation conditions, you should be informed that you have the right to an attorney, and if you cannot afford one, you have the right to a free attorney provided by the court.[844]

If you waive the right to an attorney, this waiver must be in writing.[845] Again, we suggest that you speak with an attorney or public defender prior to waiving your right to a revocation hearing.

  1. 843

    People v. Vickers, 8 Cal. 3d 451, 461 (“[T]he efficient administration of justice requires that the defendant be assisted by retained or appointed counsel at all revocation proceedings other than at summary proceedings had while the probationer remains at liberty after absconding.”). See also, Gagnon v. Scarpelli, 411 U.S. 778.

  2. 844

    Pursuant to Cal. Penal Code § 1203.2(b)(2)

  3. 845

    Cal. Penal Code § 1203.2(b)(2).

What rights do I have during a probation revocation hearing?

There are minimal due process requirements for probation revocation proceedings.[846] This means that you don’t have all of the same rights that you have at trial.[847]

You have the following rights:

    Written notice of the alleged violations and the possible consequences, with enough information to allow you to prepare a defense and obtain mitigating evidence (meaning evidence that would lessen the perceived severity of the violation or help justify it);[848]
    Disclosure of the evidence against you;[849]
    Timely hearing of the charges at a probable cause hearing and a formal revocation hearing;[850]
    The right to present witnesses and evidence.[851] You can subpoena and present witnesses and evidence.[852] A person served with a subpoena for a parole revocation hearing is required to appear at the hearing unless the hearing is held at a place outside the county of his or her residence and more than 75 miles from his or her residence;[853]
    The right to confront and cross-examine adverse witnesses.[854] You have a conditional right under the U.S. and California constitutions to confront witnesses whose statements are used against you in a probation violation hearing.[855] This means that you or your attorney may cross-examine any people who gave information or testified that you violated your probation.[856]
    A fair and unbiased hearing body;[857] and
    A written statement of the decision, the evidence relied on, and the reasons for revoking parole.[858]

!

IMPORTANT: You may waive (give up) your rights, either expressly—by saying you give up the right, or by implication—by failing to assert the right.[859] Therefore, it is important that you take advantage of your rights and complain if a right is violated.

  1. 846

    In Morrissey v. Brewer, the U.S. Supreme Court established minimal due process requirements for parole revocation proceedings under the Fourteenth Amendment to the U.S. Constitution. 408 U.S. 471, 488-89 (1972). With regard to the revocation of probation, the Court subsequently held that “a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey.” Gagnon v. Scarpelli, 411 U.S. 778, 782 (1973). Thus, the State “must provide the same process [found in Morrissey ] when terminating a probationer from probation.” State v. Rogers, 144 Idaho 738, 742–43 (2007); State v. Scraggins, 153 Idaho 867, 871 (2012). While Morrissey and Gagnon holdings make clear that probationers do not retain the full constitutional protections afforded criminal defendants, a probationer has a protected liberty interest in continued probation, and is therefore entitled to due process before probation may be revoked. Morrissey and Gagnon set forth those minimum due process requirements. See State v. Scraggins, 153 Idaho 867, 871 (2012). Cases since Morrissey have reaffirmed those rights and described them more specifically. See People v. Vickers, 8 Cal. 3d 451 (1979) (“[T]he efficient administration of justice requires that the defendant be assisted by retained or appointed counsel at all revocation proceedings other than at summary proceedings had while the probationer remains at liberty after absconding.”); see also, Gagnon V. Scarpelli, 411 U.S. 778 (1973).

  2. 847

    See Gagnon V. Scarpelli 411 U.S. 778 (1973).

  3. 848

    Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972); Vanes v. U.S. Parole Commission, 741 F.2d 1197 (9th Cir. 1984) (due process violated by lack of notice of basis for parole violation charge); Rizzo v. Armstrong, 921 F.2d 855, 858 (9th Cir. 1990) (failure to give notice of consequences if parole revoked at hearing).

  4. 849

    Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972); People v. Moore, 34 Cal.3d 215 (1983) (state has duty to preserve and disclose material physical evidence).

  5. 850

    Morrissey v. Brewer, 408 U.S. 471, 485 (1972); People v. Woodall, 216 Cal. App. 4th 1221 (2013) (probation revocation procedures that fail to provide probable cause hearing do not violate due process rights if full hearing occurs relatively soon or if preliminary hearing on any new criminal charges is conducted).

  6. 851

    Morrissey v. Brewer, 408 U.S. 471, 488-489 (1972).

  7. 852

    In re Carroll, 80 Cal. App. 3d 22, 34 (1978).

  8. 853

    Cal. Gov’t Code § 11185(a).

  9. 854

    Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972); Valdivia v Schwarzenegger, 599 F.3d 984, 989 (9th Cir. 2010).

  10. 855

    See Gagnon V. Scarpelli 411 U.S. 778 (1973).

  11. 856

    You keep this right to cross-examine a witness unless: a.) the hearing officer (i.e. the judge) determines that there is “good cause” that the witness does not have to testify, and b.) that the “good cause” outweighs (exceeds) your right to confront that particular witness. If the hearing officer determines that there is “good cause” that a witness does not have to testify, then the hearing officer may take into consideration that witness’s past out-of-court statements, even though the witness will not be in court you to confront. For example, if a judge determines that there is “good cause” that a witness’s safety will be in danger if he or she testifies at your probation revocation hearing, then the witness’s past statements are admissible at your hearing. But remember—the more important the witness’s testimony is to the case, the stronger your right to confront and question that witness is (see U.S. v. Comito, 177 F.3d 1166 (9th Cir. 1999); Valdivia v Schwarzenegger, 599 F.3d 984, 989 (9th Cir. 2010); People v. Arreola, 7 Cal.4th 1144, 1154 (1994). See also Gagnon V. Scarpelli 411 U.S. 778 (1973) (“[T]he minimum requirements of due process include . . . “the right to cross-examine adverse witnesses . . . unless the hearing officer specifically finds good cause for not allowing confrontation.”).

  12. 857

    Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972) .

  13. 858

    See People v. Hawkins, 44 Cal. App. 3d 958 (1975); see also, Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972).

  14. 859

    In re La Croix (1974) 12 Cal.3d 146, 153.

At my probation revocation hearing, can the prosecutor (D.A.) introduce evidence obtained through an unlawful search or seizure?

Yes.[860] You should note that the “exclusionary rule” that usually applies in a criminal court trial—a rule that bars evidence obtained in violation of the Fourth Amendment to the U.S. Constitution—does NOT apply in probation revocation hearings. This means that even if evidence was suppressed in an earlier criminal trial, it can still most likely be brought in to a later parole revocation hearing.[861]

  1. 860

    See U.S. v. Vandemark, 522 F.2d 1019, 1020 (“This accords with the almost unanimous view that the exclusionary rile does not usually apply in probation revocation settings.”). See also, People v. Harrison, 199 Cal. App. 3d 803, 808 (1988).(“We believe that federal [and state] law does [sic] not require application of the exclusionary rule to probation revocation hearings”).

  2. 861

    Pennsylvania Board of Probation & Parole v. Scott, 524 U.S. 357 (1998) (exclusion of evidence at parole hearing would hinder functioning of parole system); In re Martinez, 1 Cal.3d 641, 649-652 (1970), disapproved on other grounds in In re Tyrell J., 8 Cal.4th 68 (1994); In re Love, 11 Cal.3d 179, 190 (1974); see also, People v. Rackling, 195 C.A. 4th 872, 874 (2011) (finding that the Miranda exclusionary rule does not apply in probation revocation proceedings).

Can a witness be excused from testifying in front of me at a probation revocation hearing?

Witnesses may not be required to testify in front of you if they are deemed fearful or confidential.[862]

    “Fearful witnesses” are witnesses whose identity is known to you but who: (1) have indicated that they are at a risk of harm if they testify in your presence; or (2) have requested that their contact information be withheld from you. Testimony of a fearful witness can be taken outside the parolee’s presence, but the parolee’s attorney must be present.
    “Confidential witnesses” are witnesses whose identity you are unaware of and who would be at a risk of harm if their identity were disclosed.[863] However, if confidential information is used as part of the reason you’re charged with violating probation, you can request that the prosecutor disclose (reveal) this information or prove that revealing this information would create a risk of harm to the confidential witness.[864]
  1. 862

    The hearing officer may exempt a confidential informant from “confrontation and cross-examination.” Morrissey, 408 U.S. 471, 487 (1972) (stating that, “[h]owever, if the hearing officer determines that an informant would be subjected to risk of harm if his identity were disclosed, he need not be subjected to confrontation and cross-examination”).

  2. 863

    See United States v. Comito (9th Cir. 1999) 177 F.3d 1166; In re Melendez (1974) 37 Cal. App. 3d 967, 973; In re Prewitt (1972) 8 Cal.3d 470, 477-78. But see People v. Stanphill (2009) 170 Cal. App. 4th 61 (no need for balancing test where statement meets hearsay exception as “spontaneous statement”).

  3. 864

    See In re Prewitt, 8 Cal.3d 470, 478 (1972); In re Love, 11 Cal.3d 179 (1974) (due process violation in failure to disclose contents of “confidential” report where disclosure would not endanger any informant).

What happens if a very important witness doesn’t show up to the probation revocation hearing, even though he/she was required to attend?

If a very important (called “material”) state witness fails to attend a parole revocation hearing, and the hearing cannot fairly proceed without the witness, the court can postpone the hearing or dismiss the case.[865]

  1. 865

    To decide whether the witness’s testimony would be “material,” the court will weight the importance of the witness’s expected testimony against the availability and reliability of any alternative source of the same information. Also, if the state’s material witnesses fail to appear, but your witnesses are present, you and your attorney may want to ask that the court to take the testimony of your witnesses before postponing the rest of the hearing.

    See Cal. Penal Code § 1050(e).