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Bench Book - Offender’s Basic Rights at a Probable Cause Hearing

If the offender is entitled to a probable cause hearing, Rule 5.108(d) defines the offender’s basic rights. However, each state may have procedural variations. Therefore, to the extent that a hearing officer is unclear on the application of due process procedures in a particular retaking proceeding, it is important to consult with local legal counsel to ensure compliance with state law. One example is an offender’s right to counsel during a probable cause hearing. As stated in the preceding section, Rule 5.108 does not ensure an offender’s right to counsel, however, local procedures may provide such right where warranted by the particular facts and circumstances of the case.

The offender is entitled, at a minimum, to (1) written notice of the alleged violations of the terms and conditions of supervision, (2) disclosure of non-privileged or non-confidential evidence, (3) the opportunity to be heard in person and present witnesses and documentary evidence, and (4) the opportunity to confront and cross examine witnesses. As previously discussed, the offender may also be entitled to the assistance of counsel. The requirements in Rule 5.108 are consistent with the minimum due process requirements established in Morrissey (offender entitled to (a) written notice of the violations; (b) disclosure of evidence against probationer or parolee; (c) opportunity to be heard and to present witnesses and documentary evidence; (d) the right to confront and cross-examine witnesses; (e) a neutral and detached hearing body; and (f) a written statement by the fact finder as to the evidence relied upon). Rule 5.108 does not define the specific type of hearing required, only that it be a probable cause “type” hearing. At least one court has acknowledged that the language of Rule 5.108 simply contemplates some type of due process hearing that is a generally consistent with the due process requirements of Gagnon and Morrissey. See Smith v. Snodgrass, 112 Fed. Appx. 695 (10th Cir. 2004) (petitioner's claim that the state violated procedures specified in the interstate Compact authorizing her transfer to Arizona are meritless; relevant sections of the Compact simply acknowledge the due process requirement of a preliminary revocation hearing recognized in Morrissey and Gagnon and, given the interstate-transfer context, provide for it in the receiving state).

The probable cause hearing required by Rule 5.108 need not be a full “judicial proceeding.” A variety of persons can fulfill the requirement of a “neutral and detached” person for purposes of the probable cause hearing. For example, in the context of revocation, it has been held that a parole officer not recommending revocation can act as a hearing officer without raising constitutional concerns. See Armstrong v. State, 312 So. 2d 620 (Ala. 1975). See also In re Hayes, 468 N.E.2d 1083 (Mass. Ct. App. 1984) citing Gerstein v. Pugh, 420 U.S. 103 (1975) (while the offender was entitled to hearing prior to rendition, reviewing officer need not be a judicial officer; due process requires only that the hearing be conducted by some person other than one initially dealing with the case such as a parole officer other than the one who has made the violations report). However, the requirement of neutrality is not satisfied when the hearing officer has predetermined the outcome of the hearing. See Baker v. Wainwright, 527 F.2d 372 (5th Cir. 1976) (determination of probable cause at commencement of hearing violated the requirement of neutrality). This does not prohibit a judicial proceeding on the underlying violations, but merely provides states some latitude in determining the nature of the hearing, so long as it is consistent with basic due process standards. Presumably, if officials other than judicial officers are qualified to handle revocation proceedings, these same officials can preside over a probable cause hearing in the receiving state.



Click terms below to reveal definitions used in this rule.

Probable Cause Hearing – a hearing in compliance with the decisions of the U.S. Supreme Court, conducted on behalf of an offender accused of violating the terms or conditions of the offender‘s parole or probation.

Retaking – means the act of a sending state in physically removing an offender, or causing to have an offender removed, from a receiving state.