A recent Brockton case raises issues surrounding probation violation hearings and exemplifies how the state can often fail to respect probation violation hearing standards.

In the recent Brockton case of Commonwealth v. Bukin SJC-11306, a defendant was inappropriately sentenced after being accused violating their probation by committing a new offense. As the violation involved an unrelated criminal charge, the defendant received a probation revocation hearing and a probable cause hearing for the new charge.

At the probation hearing, the court seeks to determine two facts:
1. Whether or not the violation actually occurred 2. What disposition should be given (assuming the violation occurred).

Unlike the typical criminal case where the commonwealth is represented by the prosecutor in court, the probation department is responsible for presenting the case against the defendant and thus, meeting the burden of proof- a preponderance of the evidence- required to win the case. If the defendant is found in violation, the court will ultimately decide whether probation will be continued, terminated, revoked or modified with additional terms. The sentence depends heavily on the probation officer’s recommendation, the presentation of the evidence and other facts relating to the violation.

In the Brockton case, the court found the defendant in violation of probation based on the testimonies of two police officers, who had received statements from the victims accusing the defendant of committing a sex offence against them. The Brockton court revoked the defendant’s probation, mandating him to two years of prison time. The defendant appealed the violation, stating that his constitutional rights to due process were denied in the evaluation of his charge.

Based on the verdict of Gagnon v. Scarpelli, 411 U.S. 778 (1973), unreliable hearsay evidence cannot be the “entire basis of a probation revocation”. In the Brockton case, the police officer’s testimony was consistent with one another so the court affirmed the violation, stating that the testimonies were “substantially reliable” and held good cause. If the testimonies lacked credibility, the court would have been required to present additional proof, as the testimonies alone would not have met the required burden of proof.

In Massachusetts probation violation hearings, it is important that the probationer hires an attorney to speak to the probation department on their behalf. As the burden of proof is on the probation department, the attorney can mediate with the probation and negotiate the sanctions of the violation. As seen with Commonwealth v. Bukin, a violation can result in the probationer suffering additional sanctions or probation conditions, including significant jail time. Most judges will take the agreement between the defense attorney and probation department into consideration, when determining a sentence on a violation.

Although the evidence in Commonwealth v. Bukin was deemed reliable, many probationers are unaware of their rights during a violation hearing.