(a) Applicability of Rule. This rule governs procedures for the scheduling and conduct of preliminary hearings held before magistrates for the purpose of determining whether there is probable cause to believe a probationer has violated the terms of his probation in the District Court, Boston Municipal Court and Superior Court Departments. Such preliminary hearings are required by law to be conducted as a prerequisite to holding the probationer in custody pending the full probation revocation hearing and only when the basis for such custody, if any, will be the charge of probation violation.
(1) Surrender on Warrant. If a probationer is surrendered by means of a warrant, no preliminary hearing shall be held until the probationer is given written notice of the factual allegations on which the surrender was based. Upon such surrender a justice or magistrate shall set the date and time of such hearing and shall decide the terms of release pending such hearing, which may include modification of the pending recognizance.
(2) Voluntary Surrender. If a probationer surrenders in response to a written notice of surrender, no preliminary hearing shall be held until the magistrate is satisfied that the written notice fully describes the factual allegations on which the surrender was based and that the probationer is aware of these allegations. Such written notice of probation surrender shall be on the form provided by the Commissioner of Probation or such other form as may be promulgated by the Chief Administrative Justice of the Trial Court. Such form shall be completed and sent by the probation officer wishing to effect the surrender, provided that said probation officer consults with the magistrate regarding the date and time of hearing that are to appear on such notice and the decision on whether a preliminary hearing will be necessary.
(c) Counsel. If a preliminary probation revocation hearing is held, the probationer shall have the right to be assisted by counsel. The magistrate conducting the hearing shall follow the procedures as to the assignment of counsel established in G.L. c. 211D and Supreme Judicial Court Rule 3:10.
(d) Procedure. Preliminary probation revocation hearings shall be conducted in courtrooms whenever feasible. If not feasible, such hearings shall take place in any other room in the courthouse in which the public has access. Only when no courtroom or public room is available shall a magistrate's office or any other room to which the public generally has limited access be used for such hearings. In those instances when a magistrate's office or other private room must be used in accordance with this rule, the magistrate shall explain to the probationer and his counsel, if any, the reason for the use of such room.
Such hearings shall be stenographically or electronically recorded unless neither a stenographer nor electronic recording equipment is available.
All witnesses at such hearings shall be placed under oath.
The probationer or, if he is represented by counsel, his counsel, shall be allowed to question any witnesses he may present and shall be allowed to cross-examine witnesses testifying against him.
The rules of evidence shall not apply at such hearings. All evidence shall be given such weight as deemed appropriate by the magistrate.
The minimum quantum of evidence necessary for a finding that there is probable cause to believe a probationer has violated the terms of his probation shall be sworn testimony setting forth facts substantiating such allegations. If such testimony of itself is satisfactory to the magistrate to establish that the allegations are probably correct, and if this probability is not overcome by testimony by the probationer or his witnesses or by documentary evidence submitted by the probationer, then probable cause may be found by the magistrate. In cases when the surrender is based on an allegation that there has been a criminal conviction or finding of probable cause entered against the probationer subsequent to the probation order of which revocation is sought, and there is a dispute on the validity of this allegation, a certified copy of such conviction or probable cause finding or the original of the record thereof shall be requested from the prosecuting probation officer by the magistrate. However, the submission of such records or copies shall not be indispensable to a finding of probable cause.
When available, a court officer shall be present at such hearings.
If probable cause is found, a probation violation hearing shall be scheduled, the probationer shall thereupon be served in hand with a notice of said hearing, and the magistrate may order the probationer to be held in custody pending the conduct and completion of the scheduled final violation hearing. The magistrate's decision whether to release the probationer pending the conduct and completion of the final probation violation hearing, notwithstanding a finding of probable cause on an alleged violation, shall include, but not necessarily be limited to:
i. The probationer's criminal record;
ii. The nature of the offense for which the probationer is on probation;
iii. The nature of the current 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 final probation violation hearing if not held in custody; and
vi. The likelihood of incarceration if a violation is found following the final probation violation hearing.
If no probable cause is found, a probation violation hearing may be scheduled and the probationer thereupon served with notice thereof, but the probationer may not be held in custody pending said hearing based on the alleged probation violation.
(e) Summary of Proceedings. The magistrate shall, upon the completion of such hearing, prepare a written memorandum summarizing the proceedings and stating the reasons for the finding made. Such summary and statement of reasons shall be made on the form provided for this purpose by the Commissioner of Probation or such other form as may be promulgated by the Chief Administrative Justice of the Trial Court. When completed, one copy of such form shall be placed with the case papers, one copy shall be given to the probation officer and one copy shall be given to the probationer.
(f) Bail. Upon a finding of probable cause and an order of custody, the magistrate shall not consider or impose any terms of release such as bail, personal recognizance or otherwise as an alternative to such custody. Notwithstanding such order of probation custody, if release terms have not yet been set by a judge on any newly charged offense, the probationer shall be brought before a judge if the court is then in session, and the judge shall proceed to determine release terms and any issue of pretrial detention ("dangerousness") on such newly charged offense, as provided by law and the Massachusetts Rules of Criminal Procedure. If the court is not then in session, the magistrate shall set release terms on such newly charged offense until the probationer can be brought before a judge at the next sitting of the court.
As amended, effective July 1, 1986; September 6, 2001, effective October 1, 2001