I. SCOPE AND PURPOSE 

This standing order prescribes procedures in the Juvenile Court to be followed upon the allegation of a violation of an order of probation issued in a delinquency, youthful offender or criminal case after a finding of delinquency, youthful offender, or guilty, or after a continuance without a finding. This standing order does not apply to an alleged violation of pretrial probation, as the latter term is defined herein. 

The purpose of this standing order is to ensure that judicial proceedings undertaken upon the allegation of a violation of probation are conducted in a manner consistent with the Commonwealth’s policy regarding children as set forth in G. L. c. 119 and in full compliance with all applicable law, promptly and with an appropriate degree of procedural uniformity. This standing order supersedes Standing Order 1-07 Violation of Probation Proceedings. 

Commentary 

The first purpose of the violation hearing is to adjudicate the factual question of whether a probationer has violated his or her probation order. The second purpose is to revoke probation or order any other disposition. The issue of violation is essentially a factual matter whereas the dispositional decision of whether to revoke probation is essentially a matter of discretion

Throughout this standing order the person who is the subject of probation violation proceedings is usually referred to as the “probationer” rather than the “defendant.” With respect to the probation proceedings, such a person is not a defendant; he or she has either been adjudicated or convicted, after trial or based on a plea of delinquent, youthful offender or guilty, or has formally submitted an admission to the facts of a criminal charge. Use of the term “probationer” is intended to underscore the legal status of the person charged with a probation violation, which is fundamentally distinct from the status of a person who is a defendant on a delinquency, youthful offender or criminal case, particularly in terms of procedural rights. 

II. DEFINITION OF TERMS 

In construing this standing order, the following terms shall have the following definitions:

"Continuance without a finding" is the order of a court, following a formal submission and acceptance of a plea of guilty or an admission to sufficient facts in a youthful offender case or criminal case; or, in a delinquency case, following a formal submission and acceptance of a plea of delinquency or an admission to sufficient facts or after a trial in which the allegations are proven beyond a reasonable doubt, whereby the case is continued to a date certain without the formal entry of a delinquency, youthful offender, or guilty finding. A continuance without a finding may include conditions imposed in an order of probation (1) the violation of which may result in the revocation of the continuance, entry of a finding of guilty, youthful offender or delinquency and imposition of sentence or commitment to the Department of Youth Services and (2) compliance with which will result in dismissal of the case. 

“Defendant” is a juvenile adjudged delinquent or youthful offender or an adult convicted of a crime. 

"District Attorney" is the criminal prosecuting authority and includes the Attorney General if the delinquency, youthful offender, or criminal case in which probation was ordered was prosecuted by the Office of the Attorney General. 

"General conditions of probation" are the conditions of probation that are imposed as a matter of course in every order of probation, as set forth in the official form promulgated by the Chief Justice of the Juvenile Court for such orders. 

"Probation order" is the formal, written court order whereby a defendant is placed on probation and which expressly sets forth the conditions of probation. A probation order is not a contract. 

"Pretrial probation" is the probationary status of a defendant pursuant to a probation order issued prior to a trial or prior to the formal submission and acceptance of a plea of delinquent, youthful offender or guilty, or prior to an admission to sufficient facts, as provided in G. L. c. 276, § 87. 

"Revocation of probation" is the revocation by a judge of an order of probation as a consequence of a determination that a condition of that probation order has been violated. 

"Special conditions of probation" are any condition of probation other than one of the general conditions of probation. 

"Surrender" is the procedure by which a probation officer requires a probationer to appear before the court for a judicial hearing regarding an allegation of a probation violation. 

III. COMMENCEMENT OF VIOLATION PROCEEDINGS: CHARGED CRIMINAL CONDUCT 

(a) General. This standing order prescribes the procedures to be undertaken upon the issuance of a delinquency or criminal complaint or youthful offender indictment against a probationer. 

(b) Where Probation Order and Delinquency or Criminal Complaint or Youthful Offender Indictment Involve Same Court Division. 

(i) Issuance and Service of Notice of Violation; Termination of Proceedings; Withdrawal of Notice of Violation. When a delinquency or criminal complaint is issued by a court division or a youthful offender indictment is returned by a grand jury and remitted to a court division of the Juvenile Court against a defendant who is the subject of a probation order previously issued by that same court division, the Probation Department shall commence violation proceedings against that probationer. Such proceedings shall be commenced by the issuance by the Probation Department of a Notice of Probation Violation/Hearing at or before the arraignment on the delinquency or criminal complaint or youthful offender indictment, or as soon thereafter as possible. The Notice shall be served on the probationer in hand following the assignment of a date and time for a probation violation hearing as provided in Section III(b)(ii) and such service shall be entered in the case docket, provided that if such in-hand service is not possible, the Notice shall be served on the probationer by first-class mail, unless the court orders otherwise. Service of the Notice by first-class mail shall be entered in the case docket. Out of court service other than by mail shall require a written return of service. The Probation Department shall provide a copy of each Notice of Probation Violation/Hearing to the District Attorney forthwith upon its issuance. 

At any time during violation proceedings, the court, upon review of the Notice and as a matter of its discretion, may order termination of the proceedings. A Notice of Probation Violation may be withdrawn only with the permission of the court and such withdrawal and permission shall be entered in the case docket. 

(ii) Contents of Notice of Violation. The Notice of Probation Violation/Hearing shall set forth the criminal conduct alleged to have been committed by the probationer as indicated in the delinquency or criminal complaint or youthful offender indictment, and shall set forth any other specific conditions of the probation order that the Probation Department alleges have been violated with a description of each such alleged violation. The Notice shall also state the date, time, and place of the probation violation hearing. 

(iii) Scheduling of Hearing. The probation violation hearing shall be scheduled to commence on the date of the pretrial hearing for the new delinquency or criminal complaint or youthful offender indictment, unless the court expressly orders an earlier hearing. The hearing shall be scheduled for a date certain no less than seven days after service on the probationer of the Notice of Violation/Hearing unless the probationer waives said seven day notice period. The hearing date shall not be later than fifteen days after service of the Notice of Violation/Hearing without the probationer’s consent if he or she is held pursuant to Section V of this standing order. In any case, the hearing shall not be later than thirty days after service of the Notice of Violation/Hearing, except in extraordinary circumstances. In scheduling the pretrial hearing on the new delinquency or criminal complaint or youthful offender indictment together with the probation violation hearing, the court shall give primary consideration to the need for promptness in conducting the probation violation hearing. 

(c) Where Probation Order and Delinquency or Criminal Complaint or Youthful Offender Indictment Involve Different Divisions.

(i) Issuance and Service of Notice of Violation. When a delinquency or criminal complaint is issued by a court division of the Juvenile Court or a youthful offender indictment is returned by a grand jury (hereinafter the “criminal court”) against a defendant who is the subject of a probation order issued by a different court division of the Juvenile Court Department (hereinafter the “probation court”), the Probation Department in the criminal court shall issue a Notice of Probation Violation/Hearing to the probationer at or before arraignment on the new delinquency or criminal complaint or youthful offender indictment, or as soon thereafter as possible. The Notice, as provided in paragraph (c)(ii) below, shall be served on the probationer in hand and such service shall be entered in the case docket. Nothing in this section shall preclude the later issuance and service on the probationer of a Notice of Probation Violation/Hearing by the Probation Department of the probation court. 

(ii) Contents of Notice of Violation. The Notice of Probation Violation/Hearing shall set forth the name of the probation court and criminal conduct alleged to have been committed by the probationer as indicated in the delinquency or criminal complaint or youthful offender indictment and shall order the probationer to appear at a specific date and time at the probation court for the express purpose of appointment of counsel, if necessary, and scheduling of a probation violation hearing. 

(iii) Transmission of Notice of Violation and Other Documents to Probation Court. Prior to the service of the Notice of Violation/Hearing on the probationer, the Probation Department at the criminal court shall send to the probation officer on duty in the probation court or, if there is no probation officer on duty, to the Chief Probation Officer at the probation court, by electronic transmission, copies of the following documents: the notice of violation; the delinquency or criminal complaint or youthful offender indictment and related police report on the new criminal charge that constitutes the alleged probation violation; and a request for the following information: whether the probation court recommends that the probationer be transported in custody, and, if not, the date and time for the non-custodial appearance of the probationer at the probation court. 

(iv) Response by the Probation Court. At the probation court, the probation officer on duty, the Chief Probation Officer, an Assistant Chief Probation Officer, or a probation officer designated by either shall respond by electronic transmission to the request for information no later than one hour from receipt thereof. The response shall include a recommendation on whether the probationer should be transported to the probation court in custody, and, if not, the date and time for the probationer’s non-custodial appearance at the probation court. 

(v) The Decision to Transport. A judge at the criminal court shall decide whether the probationer is to be transported in custody to the probation court. The judge shall provide the probationer an opportunity to be heard and, unless exceptional circumstances require otherwise, shall wait at least one hour for receipt of the recommendation from the probation court before making such decision. If the criminal court orders custodial transport, it shall issue a probation transportation order on behalf of the probation court, and the probation court shall be so notified. The probationer promptly shall be transported in accordance with the probation transportation order, provided that, if the probationer is held in custody in the criminal proceeding, the probation transportation order shall be lodged with custodial authority to ensure that the probationer will be detained and transported to the probation court. The Probation Department at the criminal court shall so notify the Probation Department at the probation court. 

If the criminal court decides not to order custodial transport, it shall enter the probation court appearance date and other required information on the notice of violation and serve it on the probationer in accordance with Section III (c)(i). For good cause, the criminal court may hold the probationer in custody pending its decision regarding custodial transport. Nothing in this rule shall preclude the issuance of an arrest warrant for a violation of probation by the probation court to secure the appearance of a probationer for a probation violation proceeding.

(vi) Probationer’s Appearance at the Probation Court; Service of a New Notice. Upon appearance of the probationer at the probation court, the court shall appoint counsel, if necessary, and shall schedule a probation violation hearing for a date certain, the date to be no less than seven days later unless the probationer waives said seven-day period. The hearing date shall not be later than fifteen days after said appearance without the probationer’s consent if he or she is held pursuant to Section V of this standing order, or in any case no later than thirty days after said appearance, except in extraordinary circumstances. If the Probation Department at the probation court alleges additional violations, it shall prepare and serve on the probationer a new Notice of Probation Violation/Hearing which shall set forth all alleged violations. The Notice shall also include the date, time and place of the violation hearing and shall be served on the probationer in hand while he or she is before the court, or as soon thereafter as possible. Such service shall be entered in the case docket. The Probation Department shall provide a copy of the new Notice to the District Attorney at the time of, or before such service on the probationer. 

At any time during the proceeding, the probation court, upon review of the Notice and as a matter of its discretion, may order termination of the proceedings The Notice may be withdrawn only with the permission of the court and such withdrawal and permission shall be set forth on the record and entered in the case docket. 

(vii) Procedure When a Defendant is a Probationer in More than One Other Court Division within the Juvenile Court. When a defendant appearing in a court division on a new delinquency, youthful offender, or criminal charge is on probation at more than one other court division within the Juvenile Court, the criminal court shall select one of the latter divisions to be the probation court and shall issue a Notice of Violation/Hearing for that division. The criminal court shall interact as provided in this section with the selected probation court. The other probation court or courts each shall be responsible for the issuance and service on the probationer of a Notice of Violation/Hearing based on the new criminal conduct, and for securing the presence of the probationer for a violation hearing by means of such Notice or by means of an arrest warrant for a violation of probation or other process.

(d) When Probation Order and New Criminal Charge Involve Different Court Departments. When a criminal complaint is issued by a court or an indictment is returned against a defendant who is the subject of a probation order issued by a court in a different court department, the criminal and probation court personnel shall proceed in accordance with Trial Court Standing Order 2-16, Uniform Interdepartmental Procedures for Probation Violation Proceedings. 

Commentary 

This section involves cases in which an alleged probation violation consists of new criminal conduct charged against the probationer. Such cases can arise in two contexts: where the probationer is on probation at the same court division that issued the new charges (the “same court” situation), and where the new charges were issued by a court division or department other than the one where the probationer is on probation (the “different court” situation). 

For both situations, this section contains a provision by which a Notice of Probation Violation/Hearing may be “withdrawn.” Such withdrawals have been a method by which probation violation proceedings may be terminated. There has been no requirement for court approval or permission. The provision imposes two new requirements: (1) that such withdrawals must receive the permission of the court, and (2) that such permission and the fact of the withdrawal must be entered on the case docket. By requiring judicial permission and entry on the record, the provision reflects the importance of a process by which a probation violation proceeding that has been formally commenced may be terminated without adjudication. 

New subsections (c)(iii) – (v) have been added to provide a detailed process by which, in the “different court” situation, the “criminal court” must interact with the “probation court.” The purpose of this interaction is to effect the transfer of the probation proceeding and, in some instances, the custodial transfer of the probationer, to the probation court. 

Under the former procedure, the decision to transport a probationer was made at the probation court, a warrant issued there and was sent to the criminal court. This meant that a probation officer had to seek the issuance of a warrant by a judge of that court, a judge who was otherwise unaware of the matter and was usually engaged in that court’s daily business. This would often delay the process, particularly in those cases where the judge at the probation court required a more detailed description of the underlying allegations before issuing the warrant. 

This standing order has been changed because the judge in the criminal court will be addressing an issue in a case that is before the court at that time, will be immediately aware of the criminal case which constitutes the alleged probation violation, and will have all relevant information regarding the probationer’s criminal record and pending probation status. 

Section (c)(vii) has been added to address a circumstance not previously addressed, namely, where the defendant before the criminal court is currently on probation in more than one other court division within the Juvenile Court. It provides that in such cases the judge at the criminal court must decide the probation court with which the criminal court will interact. This decision will determine which of the probation courts will be “first in line” to address the probationer’s alleged violation based on new charged criminal conduct. The standing order provides that the other courts at which the individual is on probation are responsible for charging the new criminal conduct as an alleged violation, and initiating a violation proceeding by issuing a Notice of Violation/Hearing and mailing it to the probationer or obtaining the appearance of the probationer by means of an arrest warrant for a violation of probation or other process such as a writ of habeas corpus. 

IV. COMMENCEMENT OF VIOLATION PROCEEDINGS: VIOLATIONS OTHER THAN NEW CHARGED CRIMINAL CONDUCT 

(a) General. This section prescribes the procedures to be undertaken regarding alleged violations of probation that do not involve or include criminal conduct charged in a new delinquency or criminal complaint or youthful offender indictment. 

(b) Issuance and Service of Notice; Termination of Proceedings, Withdrawal of Notice. When a probation officer of a court division that has issued a probation order determines that a probationer has violated any condition of that order other than alleged criminal conduct as charged in a new delinquency or criminal complaint or youthful offender indictment, that probation officer shall decide whether to commence probation violation proceedings. Such decision shall be made in accordance with the rules and regulations of the Office of the Commissioner of Probation, provided, however, that probation violation proceedings shall be commenced (1) upon the issuance of a criminal complaint or indictment, (2) when the judge issuing the probation order orders that such proceedings are to be commenced upon an alleged violation of one or more conditions of probation, or (3) when the commencement of such proceedings is required by statutory mandate. In any case, a judge of the court division may order the commencement of violation proceedings. 

Violation proceedings shall be commenced by the issuance by the Probation Department of a Notice of Probation Violation/Hearing which shall be served on the probationer in hand or by first-class mail, unless the court orders otherwise. Service of the Notice in hand or by first- class mail shall be entered in the case docket. Out-of-court service other than by first-class mail shall require a written return of service. The Probation Department shall provide a copy of each Notice of Probation Violation/Hearing to the District Attorney forthwith upon its issuance.

 If deemed appropriate, because of the seriousness of the alleged violation or for other good reason, the court may issue an arrest warrant for a violation of probation. The clerk shall forthwith enter such warrant in the Warrant Management System. Upon the probationer’s first appearance before the court, the probationer shall be served in hand with the Notice of Violation/Hearing. 

At any time during the proceedings, the court, upon review of the Notice and as a matter of its discretion, may order termination of the proceedings. The Notice may be withdrawn only with the permission of the court and such withdrawal and permission shall be set forth on the record and entered in the case docket. 

(c) Contents of Notice. The Notice of Probation Violation/Hearing shall set forth the conditions of the probation order that the Probation Department alleges have been violated and shall order the probationer to appear at a specific date and time for the express purpose of the appointment of counsel, if necessary, and the scheduling of a probation violation hearing. 

(d) Scheduling of Hearing. Upon appearance of the probationer in accordance with the Notice required by paragraph (c) above, the court shall appoint counsel, if necessary, and schedule a probation violation hearing for a date certain, said date to be no less than seven days later unless the probationer waives said seven-day notice period. The hearing date shall not be later than fifteen days after said appearance without the probationer’s consent if he or she is held pursuant to Section V of this standing order, or in any case no later than thirty days after said appearance, except in extraordinary circumstances. 

V. PROBATION DETENTION HEARINGS 

(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 of probation detention hearing indicating the purpose of the hearing and referring to the probation violations alleged in the Notice of Violation/Hearing which is required to be served on the probationer under this standing order. The probation 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 of probation detention hearing shall be served in hand when the probationer is before the court having been arrested on a new delinquency or criminal complaint or youthful offender indictment, having been arrested for a probation violation, or for any other reason. The notice of probation detention hearing 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 a judge is not available, by a clerk-magistrate. When a clerk-magistrate conducts a probation detention hearing, a resulting custody order shall not extend beyond the date on which a judge will next be available 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 paragraph (b) above, the appointment of counsel, the appearance of private counsel or the knowing and voluntary waiver of the right to counsel in accordance with G. L c. 119, § 55A, 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 the testimony of the 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 or juvenile 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 or commitment 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 terms it deems necessary and appropriate to insure the safety of an individual or the community. In the case of a juvenile, the court may impose terms of release that balance the issues of public safety and the best interests of the juvenile. These terms may include, but are not limited to, an earlier curfew, restrictions on the juvenile’s activities, or terms that permit a juvenile to attend school and/or receive services available only in the community. Terms of release shall be set forth in writing and served in hand on the probationer. Terms of release imposed under this section are not conditions of probation. A violation of a term of release shall not itself be the basis for a finding of a violation of probation, although the judge may consider such violation of a term of release in determining a proper disposition under section VIII(d) and IX(b). 

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 nor shall an order with terms of release be issued pending the hearing based on the alleged probation violation. 

(d) Bail. Bail and other conditions of pretrial release pursuant to G. L. c. 276, §§ 58 and 58A do not apply to a probation detention hearing. However, the court shall proceed to determine the issues of bail and pretrial detention (“dangerousness”) on any new delinquency or criminal complaint or youthful offender indictment, as provided by law. 

Commentary 

This section differs from its antecedent, in its 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 is to use terms that more accurately describe and clearly differentiate these proceedings. 

Paragraph (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. 

Paragraph (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. 

When probable cause is found and the court does not order the probationer held in custody, Section V authorizes the court to impose terms of release. Authorizing the court to impose terms of release is consistent with the Juvenile Court’s mission to further the best interests of children who appear before the court by offering a course of rehabilitation rather than punishment, consistent with the provisions of G. L. c 119. See also Jake J. v. Commonwealth, 433 Mass. 70, 75 (2000). If a probationer fails to comply with the order of terms of release, the probationer may be subject to arrest and brought before the court for a review of custody status. 

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 probation 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 terms of release on the probation matter pending a probation violation hearing. 

Paragraph (d) makes clear that bail and other terms of pretrial release have no application to a probationer’s custody pending the conduct and completion of a violation hearing. Bail and other conditions of pretrial release, including pretrial detention based on “dangerousness” under G. L. c. 276, § 58 and 58A, 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 violation hearing. 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 delinquency, youthful offender or criminal charge, the court must address the terms of pretrial release on the new charge(s). 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 new delinquency, youthful offender or 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 on the new charge(s). 

VI. CONDUCT OF HEARINGS 

(a) In General. Probation violation hearings shall be conducted by a judge, on the record. All testimony, including that of a probation officer, shall be taken under oath. The presentation of the case against the probationer shall be the responsibility of the probation officer assigned by the Chief Probation Officer of the court. The probationer shall be entitled to the assistance of counsel, including the appointment of counsel for probationers determined by the court to be indigent. A waiver by the probationer of the right to counsel shall be accepted by the court only if the court determines that such waiver is being made knowingly and voluntarily and in accordance with G. L. c. 119, § 55A.

(b) Requirement of Two Step Procedure. Probation violation hearings shall proceed in two distinct steps, the first to adjudicate the factual issue of whether the alleged violation or violations occurred, the second to determine the disposition of the matter, if a violation of probation is found to have occurred. 

(c) Adjudication of Alleged Violation. Probation violation hearings shall commence with testimony by the probation officer describing the violation or violations alleged in the Notice of Violation/Hearing, and shall proceed with a presentation of the evidence supporting the allegations. The probationer shall be permitted to present evidence relevant to the issue of the alleged violation. Each party shall be permitted to cross-examine witnesses produced by the opposing party. Hearsay evidence shall be admitted by the court in accordance with section VII of this standing order, provided that the court shall enforce any statutory privileges unless waived and any legally required disqualifications. The probation officer shall have the burden of proving the alleged violations with or without the participation of the District Attorney as provided below. The standard of proof at such hearings shall be the preponderance of the evidence. After the presentation of evidence, both parties or their counsel shall be permitted to make a closing statement. 

(d) Dispositional Decision. If the court finds that the probationer has violated one or more conditions of probation as alleged, the probation officer shall recommend to the court a disposition consistent with the dispositional options set forth in sections VIII(d) and IX(b), and may present argument and evidence in support of that recommendation. The probationer shall be permitted to present argument and evidence relevant to disposition and to propose a disposition. 

(e) Continuances. Probation violation hearings shall be continued only by a judge and only for good cause shown. No continuance shall be ordered other than to a date certain and for a specific purpose, and as provided in section VIII(a). The pendency of a delinquency or criminal complaint or youthful offender indictment which also constitutes an alleged violation of probation shall not be grounds for a continuance of the probation violation hearing unless a judge determines the interests of justice require it. The reason of any continuance shall be stated by the judge and entered in the case docket. 

(f) Participation of the District Attorney

(i) In General. The District Attorney may participate in probation violation hearings as provided in G. L. c. 279, § 3, and such participation shall be permitted in any such proceeding regardless of whether the delinquency or criminal or youthful offender case in which the probation order was issued involved a felony charge. 

(ii) Coordination with the Probation Department. If the District Attorney intends to appear at a probation violation hearing, he or she shall confer prior to the hearing with the probation officer responsible for presenting the matter to the court, for the purpose of coordinating the District Attorney's involvement in the hearing with the planned presentation of the probation officer. 

(iii) Presentation of Evidence. The District Attorney may present and examine witnesses at the hearing and may examine witnesses presented by the probation officer, and may cross- examine witnesses presented by the probationer. The probationer may cross-examine witnesses presented by the District Attorney. The District Attorney shall be responsible for the attendance of every witness he or she wishes to present, and for the summoning of such witnesses. 

(iv) Finding and Disposition. After the presentation of evidence, the District Attorney may be heard on the strength of that evidence in supporting a finding of violation. If the court finds that the probationer has violated one or more of the conditions of probation as alleged in the Notice of Violation/Hearing, the District Attorney may be heard regarding the court’s disposition of the matter. The District Attorney may present a recommendation on disposition orally or in writing. 

(g) Admission to Violation and Waiver of Right to Hearing. The court may accept an admission to an alleged probation violation and a waiver of the right to a violation hearing only upon a determination that the admission and waiver have been made knowingly and voluntarily.

 Such an admission and waiver shall not be accepted by the court subject to any condition regarding the disposition of such violation or the disposition of any other probation violation or any pending delinquency or criminal complaint or youthful offender indictment. A probationer shall not be entitled to withdraw an admission as of right after it has been accepted by the court. 

(h) Ensuring Probationer’s Presence in Courtroom. For good cause, the court may order that the probationer be taken into custody pending the commencement and completion of the violation hearing. 

Commentary 

District Attorney Participation 

Section (f) addresses participation by the District Attorney. Sections III and IV of this standing order require the probation officer to provide a copy of every Notice of Probation Violation and Hearing to the District Attorney. Section (f) is intended to clarify the involvement of the District Attorney in those cases where he or she decides to participate, consistent with the statutory provisions of G. L. c. 279, § 3. 

It should be noted that as a constitutional matter, probation functions are within the judicial branch, and the office of the District Attorney is considered within the executive branch. Commonwealth v. Tate, 34 Mass.App.Ct. 446 (1993). Under the Massachusetts Constitution, Pt. 1 Art. 30, the branches must maintain a separation of governmental powers. That separateness does not, however, lead to the conclusion that a district attorney’s office may not assist the probation service in presenting evidence in support of a position that the probation service had decided upon. Probation officers are only aided, not interfered with, when district attorneys, upon invitation, conduct examination of witnesses and present evidence. Commonwealth v. Tate at 448 and cases cited. 

Thus the right of District Attorneys to present evidence and witnesses, and to examine and cross-examine witnesses at these proceedings would appear to be constitutionally acceptable as long as it does not fundamentally interfere with probation. 

VII. HEARSAY EVIDENCE 

(a) Admissibility of Hearsay Evidence. Hearsay evidence shall be admissible at probation violation hearings. 

(b) Legal Sufficiency of Hearsay Evidence. The court may rely on hearsay as evidence of a probation violation only if the court finds in writing that the hearsay is substantially reliable. In determining if hearsay is substantially reliable, the court may consider, among any other relevant factors, whether that evidence 

(1) is based on personal knowledge and/or direct observation, rather than on other hearsay; 

(2) involves observations recorded close in time to the events in question; 

(3) is factually detailed, rather than generalized and conclusory; 

(4) is internally consistent; 

(5) is corroborated by any evidence provided by the probationer; 

(6) was provided by a disinterested witness; or 

(7) was provided under circumstances that support the veracity of the source (e.g., was provided under the pains and penalties of perjury or subject to criminal penalties for providing false information). 

VIII. FINDING AND DISPOSITION 

(a) Requirement of Finding. Upon the completion of the presentation of evidence and closing arguments on the issue of whether the probationer has violated one or more conditions of a probation order, as alleged, the court shall make a determination of that issue. The court shall decide the matter promptly and shall not continue the proceeding generally. 

(b) Finding of No Violation. If the court determines that the probation officer has failed to prove by a preponderance of the evidence that the probationer committed a violation alleged in the Notice of Probation Violation/Hearing, the court shall expressly so find and said finding shall be entered in the case docket. 

(c) Finding of Violation; Written Findings of Fact. If the court determines that the Probation Department has proved by a preponderance of the evidence that the probationer has violated a condition of probation as alleged in the Notice of Probation Violation/Hearing, or if the probationer waives the hearing and admits such violation and the court accepts such admission in accordance with section VI(g), the court shall expressly so find, and said finding shall be entered in the case docket. In a contested proceeding, the court shall make written findings of fact to support the finding of violation, stating the evidence upon which the court relied. A finding of violation based on an admission may be recorded as such. 

(d) Disposition After Finding of Violation. After the court has entered a finding that a violation of probation has occurred, the court may order any of the following dispositions set forth below, as it deems appropriate. These dispositional alternatives shall be the exclusive options available to the court. The court shall proceed to determine disposition promptly following the entry of a finding of violation. General continuances are prohibited. In determining its disposition, the court shall give such weight as it may deem appropriate to the recommendation of the Probation Department, the probationer, and the District Attorney, if any, and to such factors as public safety; the seriousness of any offense of which the probationer was placed on probation; the nature of the probation violation; the occurrence of any previous violations and the impact of the underlying offense on any person or community, as well as any mitigating factors. 

(i) Continuance of Probation. The court may decline to modify or revoke probation and, instead, issue to the probationer such admonition or instruction as it may deem appropriate. 

(ii) Termination. The court terminate the probation order. 

(iii) Modification. The court may modify the conditions of probation. Such modification may include the addition of reasonable conditions and the extension of the duration of the probation order. 

(iv) Revocation. The court may order that the order of probation be revoked. If the court orders revocation, it shall state the reasons therefor in writing. 

(e) Execution of Suspended Sentence or Commitment; Stay of Execution. Upon revocation of a probation order, any sentence or commitment that was imposed for the offense involved, the execution of which was suspended, shall be ordered executed forthwith; provided, however, that such execution may be stayed (1) pending appeal in accordance with Mass.R.Crim.P. 31, or (2) at the court's discretion, and upon the probationer’s motion, to provide a brief period of time for the probationer to attend to personal matters prior to commencement of a sentence of incarceration or commitment to the Department of Youth Services. The execution of such sentence or commitment shall not be otherwise stayed. 

(f) Imposition of Sentence or Commitment Where No Sentence or Commitment Previously Imposed. Upon revocation of probation in a case where no sentence or commitment was imposed following conviction or adjudication, the court shall impose a sentence, commitment, or other disposition as provided by law. 

IX. VIOLATION OF CONDITIONS OF A CONTINUANCE WITHOUT A FINDING 

(a) Notice, Conduct of Hearing, Adjudication. The procedures set forth in this standing order regarding notice for, and the conduct and adjudication of, probation violation hearings shall also apply where the Probation Department alleges a violation of one or more conditions of probation imposed together with a continuance without a finding. 

(b) Disposition. The dispositional options available to the court following a determination that one or more conditions of probation imposed together with a continuance without a finding have been violated shall be as follows: 

(i) Termination of Probation. The court may terminate the order of probation and the continuance without a finding and enter a dismissal on the underlying criminal case. 

(ii) Continuation of the Continuance Without a Finding With No Probation Modification. The court may continue the continuance without a finding and issue to the probationer such admonition or instruction as it may deem appropriate. 

(iii) Continuance of the Continuance Without a Finding With Modification of Probation. The court may continue the continuance without a finding and modify the conditions of probation including the duration of the continuance. 

(iv) Termination of the Continuance Without a Finding and No Revocation of Probation. The court may terminate the continuance without a finding without revoking probation and, if a finding of sufficient facts was entered at the time the continuance without a finding was ordered, shall proceed to enter a guilty, delinquency or youthful offender finding. The order of probation, with or without modifications, may thereupon constitute the disposition on the finding if the probationer consents. 

(v) Termination of the Continuance Without a Finding and Revocation of Probation. The court may terminate the continuance without a finding and revoke the order of probation. If the court orders revocation, it shall state the evidence relied upon in writing, and, if a finding of sufficient facts was entered at the time the continuance without a finding was ordered, the court shall enter a guilty, delinquency or youthful offender finding and impose a sentence, commitment or other disposition as provided by law.

As amended; effective September 25, 2017.

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