Probation violation cases are among the most common cases seen in our criminal courts. The basis for such a case is usually “picking up a new case,” or the new case contains an allegation that the client violated some law, meaning he violated a condition of probation that the probationer obey all laws.

Other grounds for violating probation can be failing to pay fines, failing to pay restitution, failing to comply with a court order such as to enroll in and complete classes or perform community service (or stay away from a store or person), or not submitting to, or failing a drug test.

If one opts for a probation violation hearing, there are certain rules that one must be aware of in preparing for this hearing, which is similar to a trial, but without a jury. The probationer can call witnesses to the court via subpoena. The probationer is also allowed to cross-examine prosecutor witnesses.

The probationer may present mitigating or extenuating circumstances and he or she may choose to testify on his or her own behalf.

However, two important procedural standards must be understood before opting for a probation violation hearing. First, the burden of proof is not beyond a reasonable doubt, as in a criminal trial. Instead it is preponderance of the evidence, a much lower standard. People v. Rodriquez (1990) 51 Cal.3d 437, 441. This means that the prosecutor need only show that it is “more likely than not” that the probationer violated the terms of probation. This is the standard in a civil case and it is relatively low.

Second, hearsay is admissible at the hearing. People v. Maki (1985) 39 cal. 3d 708, 709. This is usually to the probationer’s benefit, however, it means that the judge is allowed to consider the police reports and the probation report, both of which may be filled with hearsay that is demonstrably false and unduly prejudicial. It is thus important that the probationer is prepared to present rebuttal evidence, motions to exclude evidence that, for example, was obtained in violation of the Fourth or Fifth Amendment, and anything else that shows such evidence must be given little weight.

If the judge finds no violation of probation, congratulations. If, however, the judge does find a violation occurred, he or she has three options: reinstate probation on the same terms and conditions; modify probation to add terms and conditions, or; revoke probation and sentence you to jail or prison.

In deciding the terms of any sentence, the judge will take into account the nature of the violation, how much time on probation was served before the violation, one’s criminal history, one’s age, one’s employment situation, and the recommended actions of the probation department.

It is extremely important to approach any probation violation hearing in a prepared manner because the burden of proof is low and the rules of evidence are relaxed. Due to these standards, we recommend that one only opt for a probation violation hearing when the facts clearly show there was no violation at all.

Greg Hill, a criminal defense attorney in Torrance, California, graduated from the U.S. Naval Academy (Bachelor of Science, 1987), Boston University (M.B.A., 1994) and Loyola Law School (J.D., 1998). Visit his firm’s website is at http://www.greghillassociates.com or call him at (310) 782-2500.

Greg Hill, a criminal defense attorney in Torrance, California, graduated from the U.S. Naval Academy (Bachelor of Science, 1987), Boston University (M.B.A., 1994) and Loyola Law School (J.D., 1998). Visit his firm’s website is at http://www.greghillassociates.com or call him at (310) 782-2500.

Author Bio: Greg Hill, a criminal defense attorney in Torrance, California, graduated from the U.S. Naval Academy (Bachelor of Science, 1987), Boston University (M.B.A., 1994) and Loyola Law School (J.D., 1998). Visit his firm’s website is at http://www.greghillassociates.com or call him at (310) 782-2500.

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