Different Types of Probation

There are different types of probation that vary in how intrusive they are into a person’s life. A defendant who receives a sentence of formal, or supervised, probation must regularly meet with an assigned probation officer, usually once a month. A defendant who receives informal, or summary, probation receives a list of terms he or she must satisfy, including a general provision requiring the defendant to obey all laws. No regularly scheduled meetings with a probation officer are required for a defendant on informal probation. Defendants usually receive a probation term of three years. The length of probation may vary depending on a defendant’s circumstances and can be as long as five years in certain felony cases.

Probation Violations - No Jury, Proof by Preponderance

The court is the finder of fact for probation violations. There is no right to a "trial by jury" on a probation violation. Probation problems can arise by failing to pay required fines, failure to obey all laws, a new offense, failure to pay restitution to the victim, or any number of other factors. If the probation terms require attendance at a rehabilitation program or completion of community service, it is a violation of probation to not complete those things. Probation terms may prohibit a person from going to certain places or contacting certain people; failure to follow these restrictions can be a violation. It is most important to understand, however that there must be a "nexus," or relationship, between the condition of probation and the underlying offense or it must be in place to prevent some risk of future criminal behavior. If there is no nexus, the condition may be struck down.

Violation Hearings

If there is a violation alleged then there is a right to a hearing, before a judge, not a jury, on the matter. At this hearing, the prosecution must prove that it is more likely than not that you violated your probation. This is not a reasonable doubt standard, it is known as a "preponderance of the evidence". Thus, the prosecution does not have to make as strong a case to prove a probation violation as it does to prove an initial criminal charge. Sometimes good negotiation can be the best strategy as the burden of proof is so much lower.

As an attorney, I can help present the best defense for you at a probation violation hearing. This can be much like a trial, where I will cross examine adverse witnesses, argue legal issues, and present an affirmative defense if the facts support it. At the hearing the judge can consider a range of factors in deciding both if there has been a violation and also if there are mitigating factors that can effect what consequences there may be. The mitigating factors can include the relative seriousness of the violation, whether there have been problems with probation in the past, and whether the present violation is at the beginning, middle, or end of the probation term. The judge will also consider the opinion of a probation officer or the probation department’s view of the situation.

If the judge finds a violation, he or she may extend the period of your probation, amend your probation terms, and even revoke your probation and send you to jail or prison. Therefore it is important that you and your attorney make a good case on your behalf, both in negotiations to settle the case before any hearing, and then again at the probation violation hearing. If it goes well, there may be an agreement between the prosecution and the defense that is very favorable. Even if the hearing is lost, the case must be made regarding mitigation of sentence. If done properly, and supported with persuasive evidence, the judge may decide to reinstate your probation with the same terms (a second chance), or assign you community service, rehabilitation, counseling, or any number of other less severe terms.

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