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Hearing Officer's Guide - I. When is an Offender Entitled to a Probable Cause Hearing?

An offender is normally entitled to a probable cause hearing in the receiving state when:

  1. The offender is in custodial detention in the receiving state based on violations of supervision that occurred in that state or based on a request from the sending state that the offender be detained (Cf. Smith v. Snodgrass, et al., supra); or
  2. The alleged violations of supervision in the receiving state may form the basis of revocation of supervised release and/or supervision in the community by the sending state and geographical distance may prevent the offender from adequately presenting a defense including calling witnesses or presenting exculpatory evidence (Cf., California v. Crump, supra.)
  3. The offender was previously reported as an absconder by the receiving state and subsequently apprehended in the receiving state or any other state on the sending state’s warrant and subject to retaking for absconding

Commentary

In the first circumstance, the inquiry is a preliminary hearing as to whether the custodial detention is justified based on a “reason to believe” the offender violated the conditions of their supervision. In the second case, the inquiry is more in-depth and is in the nature of a probable cause, fact finding proceeding. It should also be noted, that the two prong hearing requirement of Morrissey and Gagnon may come into play where an offender is both detained in a receiving state and considerations of distance or other factors may prevent the offender from presenting an adequate defense in future revocation proceedings predicated upon violations that occurred in the receiving state. It is important to note, however, that notwithstanding a probable cause hearing being held in the receiving state, only the authorities in the sending state can resolve whether the alleged violations amount to grounds for revocation of supervised release. Officials in a receiving state cannot, as a matter of law, determine that the offender’s violation amount to grounds for revocation of supervised release. Thus, the probable cause hearing in the receiving state applies to test the validity of an offender’s detention or to develop a record that may be used in the sending state during a revocation hearing on the merits of the violation.

If there is any question regarding the intent of the sending state to revoke an offender’s conditional release based on violations in the receiving state, the offender should be given a probable cause hearing as provided in Rule 5.108. Failure to do so may bar consideration of those violations in subsequent revocation proceedings in the sending state.

References

Definitions

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.