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Hearing Officer's Guide - V. Waiver of Hearing

Rule 5.108 provides that an offender subject to retaking can waive a probable cause hearing. No waiver is to be accepted unless the offender admits to one or more violations that are subject to revocation of supervision. The critical elements of such a waiver are:

  1. The offender is apprised of the right to a probable cause hearing.
  2. The offender is apprised of the facts and circumstances supporting their retaking.
  3. The offender is apprised that by waiving the right to a hearing, he or she is also waiving the right to contest the facts and circumstances supporting their retaking.
  4. The offender admits in writing to one or more violations that are subject to revocation of supervision.
  5. The offender is apprised in writing that by admitting to the offenses, supervised release and/or supervision in the community may be revoked by the sending state based on the admissions.

Commentary

As noted, Rule 5.108 allows an offender to waive a probable cause hearing only upon the offender admitting to one or more violations of their supervision. The effect of waiving the probable cause hearing is twofold. First, the offender is not entitled to an onsite probable cause hearing at which the receiving state is required to present evidence of the violations. Second, and more important, the offender’s waiver is, in effect, an admission that they have committed an offense of sufficient gravity as to justify revocation of supervised release and/or community supervision had the offender been under the exclusive control of the receiving state. Thus, by waiving the hearing, the offender is implicitly admitting that their actions could justify revocation of supervised release and/or supervision in the community. Therefore, it is incumbent upon officials in both the sending and receiving state to ensure that the offender is made aware of the possible grave consequences of waiving the hearing. In the interests of full disclosure, the offender should be made aware of these consequences in writing to prevent any future question as to the voluntary nature of the admission and waiver.

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.

Waiver – means the voluntary relinquishment, in writing, of a known constitutional right or other right, claim or privilege by an offender.