(a) Purpose. A probation detention hearing may be conducted to determine whether a probationer shall be held in custody pending the conduct of a probation violation hearing. The issues to be decided at a probation detention hearing are whether probable cause exists to believe that the probationer has violated a condition of the probation order, and, if so, whether the probationer should be held in custody. 

(b) Notice of Hearing. The probationer shall be given a written notice indicating the purpose of the hearing and referring to the probation violations alleged in the notice of violation which is required to be served on the probationer under these rules. The detention proceeding shall be commenced by the service of such notice on the probationer. The court may, for good cause, order that the probationer be taken into custody pending the completion of the proceeding. The notice shall be served in hand when the probationer is before the court having been arrested on a new criminal charge, having been arrested for a probation violation, or for any other reason. The notice shall be prepared and served by the Probation Department at the discretion of a probation officer or as directed by the court. 

(c) Conduct of Hearing. Probation detention hearings shall be conducted by a judge or, if there is no judge at the court, by a magistrate. When a magistrate conducts a probation detention hearing, a resulting custody order shall not extend beyond the date on which a judge will next be present at the court. On such date, the probationer shall be brought before the court and any further custody order will require the conduct of a detention hearing by a judge. 

Probation detention hearings shall be conducted in a courtroom on the record. The probationer shall be entitled to counsel. Following service of notice, as provided in Rule 5(b), and the appointment of counsel, the appearance of private counsel, or the knowing and voluntary waiver of the right to counsel, the probationer shall be allowed a reasonable time to prepare for the hearing. At the hearing, the probation officer shall be required to present evidence to support a finding of probable cause. The District Attorney may assist in the presentation of such evidence. The probationer shall be entitled to be heard in opposition. Testimony, including testimony of a probation officer, shall be taken under oath. The court shall admit such evidence as it deems relevant and appropriate. The scope of the inquiry shall be limited to the issue of whether there is probable cause to believe that the alleged violation of probation has occurred. 

If probable cause is found, the court may order the probationer to be held in custody pending the conduct and completion of the violation hearing. The court's decision whether to order such custody shall include, but not necessarily be limited to, consideration of the following: 

i. the probationer's criminal record; 

ii. the nature of the offense for which the probationer is on probation; 

iii. the nature of the offense or offenses with which the probationer is newly charged, if any; 

iv. the nature of any other pending alleged probation violations; 

v. the likelihood of probationer's appearance at the probation violation hearing if not held in custody; and 

vi. the likelihood of incarceration if a violation is found following the probation violation hearing. 

If probable cause is found and the court does not order the probationer held in custody, the court may order the probationer released upon such conditions as maybe provided for in standing orders promulgated by that court's department. 

If no probable cause is found, the court may terminate the proceedings or schedule a probation violation hearing, serving the probationer with notice thereof, but the probationer may not be held in custody pending the hearing based on the alleged probation violation.

Added December 2, 1999, effective January 3, 2000; amended February 25, 2015, effective September 8, 2015.

Commentary 

(2015)

This rule differs from its antecedent, 2000 District Court Rule 8, both in its placement and the replacement throughout of the terms "preliminary probation hearing" and "final [or 'full'] probation hearing" with the terms "probation detention hearing" and "probation violation hearing," respectively. The purpose of these changes was to use terms that more accurately describe and clearly differentiate these proceedings. 

Section (b) contains a new sentence indicating that a probation detention proceeding is commenced when the notice thereof is served on the probationer. Another new sentence indicates that the court has the authority to hold the probationer in custody pending the completion of the proceedings for good cause. The bases for the latter authority are the same as those set forth for the authority to hold a probationer in custody after the probationer's arrival at court pending the commencement and completion of a probation violation hearing. See the Commentary to Rule 6(h). Where an alleged probation violation consists of a new criminal charge, the probationer may already be in custody prior to the conduct of a detention hearing, e.g., while awaiting a bail hearing on that charge. 

Section (b) contains a new, final sentence indicating that a probation detention hearing may be conducted at the direction of the court as well at the initiative of the Probation Department. In other words, the court may initiate a detention hearing. 

The first paragraph of section (c) recognizes the authority of magistrates to conduct probation detention hearings. Such authority is specifically provided in G.L. c. 221, § 62C(g) . The rule provides conditions for the exercise of this authority by requiring that it be used only when there is no judge at the court and by limiting the duration of any resulting custody order. 

The first sentence of the second paragraph of section (c) corresponds to the first paragraph of section (c) in the 2000 District Court Rule 8. The second paragraph also contains a new, express reference to the requirement that a waiver by a probationer of the right to counsel at these hearings must be made knowingly and voluntarily. 

The remainder of section (c) differs from its antecedent in the deletion of surplus language, especially references to the court's obligation to issue and serve a notice of violation and to schedule a violation hearing. These requirements are set forth in Rules 3 and 4

One question that the rule does not address involves the effect, if any, on the probation detention probable cause determination when the alleged violation consists of a new criminal charge. In such cases, a probable cause determination will already have been made as a prerequisite for issuance of the criminal complaint for that charge. However, it would appear that a court conducting a probation detention hearing is not "bound" by the earlier probable cause ruling. While the same evidence that was considered for probable cause on the criminal complaint may also be presented to the court in the probation detention proceeding (e.g., a police report), new probable cause ruling is nonetheless required. Under the principle of res judicata and the doctrine of "issue preclusion," an earlier ruling on a legal issue is binding in a subsequent proceeding only if several requirements are met. These requirements are not met in the situation at issue. For example, the issue must have involved a final judgment on the merits in the prior proceeding. See Kobrin v. Bd. of Registration in Medicine, 444 Mass. 837 , 843-44 (2005), and cases cited therein. A probable cause ruling for the issuance of a criminal complaint is not a final judgment on the merits. Moreover; the party against whom preclusion would be asserted must have had a meaningful opportunity to have been heard in the prior proceeding. Id. In criminal cases, the accused is not entitled to be heard on the issue of probable cause (except in those cases where a criminal complaint hearing precedes an arrest). 

The 2000 District Court Rule 8(d) prohibited conditions of release, including bail. This provision in not included in the District/Municipal Courts Rule. Instead, when probable cause is found, the court is authorized to impose conditions of release. Violation of such a condition would ordinarily result in detention until the violation hearing. Recognizing the differing needs of the various court departments in the orderly processing of probation detention matters, the rule permits each court department to specify the allowable conditions of release in a standing order applicable to that department. Although bail as authorized by G.L. c. 276, § 58 is not permissible, see Commonwealth v. Puleio, 433 Mass. 39 , 42 (2000), a department, by standing order, may authorize release based on a monetary condition. A probationer released on a monetary condition would not be able to seek bail review under G.L. c. 276, § 58 . Puleio, 433 Mass. at 42.

When the court does not find probable cause, the court must exercise its discretion whether to terminate proceedings or to schedule a probation violation hearing nonetheless. Because of the need for dispatch in conducting a detention hearing, the absence of evidence, witnesses, or assistance from the District Attorney may result in the probationer officer's being unable to establish probable cause for the. purpose of detention but still having a reasonable prospect of proving the probation violation at a full hearing. The court will decide whether further proceedings are in the interests of justice, but in no event may the probationer be held or subject to conditions of release on the probation matter pending a probation violation hearing.

(2000 Commentary to former Rule 8)

Preliminary probation hearings are required only when the probationer is to be held in custody for an alleged probation violation pending the conduct of a full hearing.

"The purpose of the preliminary hearing is to protect the rights of the ... probationer who, being at liberty, is taken into custody for alleged violation of his ... probation conditions, and detained pending a final revocation hearing.".

Fay v. Commonwealth, 379 Mass. 498 , 504, 399 N.E.2d 11, 15 (1980) (citations omitted).

Thus, for example, there is no requirement of a preliminary hearing if the alleged probation violator already has received a probable cause hearing on the new crime and has been bound over to the grand jury. Stefanik v. State Board of Parole, 372 Mass. 726 , 363 N.E.2d 1099 (1977). See also Commonwealth v. Odoardi, 397 Mass. 28 , 33, 34, 489 N.E.2d 674, 677 (1986) (no preliminary hearing where probationer already incarcerated at the time of the proceeding on the alleged violation).

The issue of whether a probationer should be held in custody pending the conduct of a probation violation hearing can arise when a defendant is before the court on a separate matter (e.g., on arrest for a new criminal charge) or having been arrested with or without a warrant for a violation of probation. G.L. c. 279, s. 3 .

The probationer is entitled to a preliminary hearing "at the time of his arrest and detention..." Commonwealth v. Odoardi, 397 Mass. 28 , 33, 489 N.E.2d 647, 677 (1986). That arrest can take place while the probationer is at liberty or when a probation officer takes custody of a probationer who is before the court on another matter, such as the charge of a new crime. Written notice must be given to the probationer at that time and the probationer and counsel must be given time to prepare for this hearing. If a continuance is requested and allowed, the custody resulting from the arrest will continue until the preliminary hearing (or a final hearing if the preliminary hearing is waived) is conducted.

The rule does not provide for notice of a preliminary probation violation hearing to be served on a probationer who is at liberty. If it is believed that a probationer who is at liberty has violated probation and should be in custody pending a hearing on that violation, custody should be effected by an arrest with or without a warrant, under G.L. c. 279, s. 3 . If it is believed that a probationer who is at liberty has violated probation, but there is no need to hold him or her in custody pending a final hearing, there is no need to serve a notice of a preliminary hearing. Rather, a notice of a final hearing should be served.

At the preliminary probation violation hearing, the question of revocation or other disposition is not at issue, only the question of probable cause for the alleged violation. Of course, the preliminary hearing can be transformed into a "final" hearing if the defendant waives the minimum seven-day notice period and both the probationer and the Probation Department are willing to proceed immediately with either an admission or a hearing. Only in such instances will the issue of revocation or other disposition be appropriately addressed.

The rule provides no qualifications on the evidence that may be admitted at preliminary hearings, other than to state that the court may hear such evidence as it deems appropriate. The rules of evidence do not apply. There appears to be no law categorically disqualifying a judge who has conducted a preliminary hearing from conducting the subsequent final hearing. When no judge is available, a magistrate may conduct the preliminary hearing. See G.L. c. 221, ss. 62B and 62C(g) , and Uniform Magistrate Rule 6.

Section (c) of the rule also provides that upon a finding of probable cause, the court may order the probationer to be held in custody pending the final hearing. A finding of probable cause does not require a custody order. The rule lists six factors that the court must consider when deciding whether to release the probationer notwithstanding the finding of probable cause on the alleged violation. The list is not exclusive and the rule does not attempt to assign relative weight to the factors.

Section (d) makes clear that bail and other terms of pretrial release have no application regarding a probationer's custody pending the conduct and completion of a final probation violation hearing. Bail and other conditions of pretrial release, including pretrial detention based on "dangerousness," under G.L. c. 276, ss. 58 and 58A , have no legal or conceptual relevance to custody on an alleged probation violation. They relate solely to a newly alleged crime. If the court finds probable cause for a probation violation, it may order the defendant into custody pending the final hearing on the violation. If the court does not find probable cause, the probationer cannot be held in custody on the alleged violation. Even if the probationer is held on the probation allegation, if he or she is also before the court on a new criminal charge, the court must address the terms of pretrial release. This issue is unrelated to custody on the probation charge. The prosecutor may want to be heard on the issue of bail or dangerousness because if the probation matter is promptly resolved, the defendant may be released from custody on the probation matter well before the criminal case is concluded.

Conversely, the issue of probation custody should be addressed regardless of whether or not the prosecutor plans to ask for high bail or pretrial detention based on dangerousness.

There appears to be no basis in statutory or case law for Superior Court review of a District Court probable cause decision resulting in custody pending a final probation violation hearing.

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