Probation is a procedure in which a defendant is found guilty of a crime upon a verdict or plea of guilty. The defendant is released by the court without imprisonment, subject to conditions imposed by the court, under the supervision of a probation officer.

Probation Surrender Hearings

The probation surrender, which is also called a probation revocation, is a formal hearing process. A defendant probationer will face this if (1) they have previously been placed on probation, whether it was supervised or unsupervised (administrative) and (2) the probation department has alleged that the probationer has violated one or multiple terms of said probation.

In Massachusetts, this usually will begin when the department gives notice to the probationer via a document send to his or her last know address. This document will include a summary of the alleged violation or violations, and will contain a court order for the probationer to appear on a set date and time.

The defendant probation in the hearing has the right to be represented by legal counsel throughout the process. Witnesses are called, and in most cases consist of the probation officer assigned to the case and oftentimes the defendant. Sworn testimony is taken from all defendants, and direct and cross-examination are both used.

The hearing will differ from a trial in that hearsay testimonial evidence may be admissible and used as sufficient reasoning. In order for hearsay testimony to be admissible in a probation surrender hearing in Massachusetts, the court must find in writing that the evidence is (1) both substantially trustworthy and demonstrably reliable and (2) if the violations being alleged at the hearing are either charged or uncharged criminal acts, the probation officer has a good cause for moving forward without a witness who can provide personal knowledge relating to the evidence at hand.

Defendants are allowed to waive the right to the evidentiary hearing and ask about the violation, making an oral argument pertaining solely to the disposition, or stipulate both the violation and proposed disposition the his or her defense counsel and probation officer agree upon. However, the court is not required to use the proposed recommendation that the parties have agreed upon and may choose to impose its own, different sentence in its place.

In these cases, there can also be a separate hearing that is called the probation detention hearing. This is preliminary, and occurs when the probation department has petitioned the court to detain the defendant probationer. When done, there is normally no possibility of bail, and the probationer will be held until the probation surrender hearing ends.

Pre-Trial Probation

As the name suggests, this occurs before the trial and other final dispositions. It is an agreement sanctioned by the courts that occurs between the defendant in the case and the government. It begins with each party presenting any proposed agreements they have for the pre-trial probation. The court will either decide to grant or deny these agreements. If the agreement is denied, the court may compel the parties to find a different resolution for the matter. This can be a dismissal, plea bargain, or a trial. Pre-trial probation is not available for many cases, and is granted solely on a case-by-case basis.

In pre-trial probation, the defendant is either place or supervised or unsupervised probation for a set amount of time prior to the entry of a criminal conviction. It is a substational benefit to the defendant. This is because, if granted pre-trial probation, the defendant’s case is taken off the court docket on a temporary basis, and will be dismissed should the defendant complete the set probation without issue. In the case that the defendant violates the set probation, the case is then returned back to the court docket and follows normal court procedures.

A pre-trial probation differs from the probation surrender in the defendant cannot and will not be incarcerated if the pre-trial probation is violation. This is because there has not been a final disposition. The government can still request that the court holds a bail hearing, which can result in the defendant being detained and held either with or without bail. Whether bail is offered will depend on the circumstances surrounding the alleged violation of the pre-trail probation, as well as the other considerations given to all bail hearings.