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]

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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.