District/Municipal Courts Rules for Probation Violation Proceedings  Rule 1: Scope and purpose

These rules prescribe procedures in the Boston Municipal Court and the District Court to be followed upon the allegation of a violation of an order of probation issued in a criminal case after a finding of guilty or after a continuance without a finding. These rules do not apply to an alleged violation of pretrial probation, as the latter term is defined herein.

The purpose of these rules is to ensure that judicial proceedings undertaken upon the allegation of a violation of probation are conducted in full compliance with all applicable law, promptly and with an appropriate degree of procedural uniformity.

(2015) 

In recognition of the advisability of having uniform procedures, to the extent practical, within the Trial Court, a single set of Rules for Probation Violation Proceedings has been promulgated for use in both the Boston Municipal Court and the District Court. These rules are largely modeled on the District Court Rules for Probation Violation Proceedings, made effective in 2000, with changes made both to account for legal and technological developments since 2000 and to account for the respective needs of each department.

(2000)

Probation violation proceedings are among the most important matters within District Court jurisdiction. The timely and proper conduct of these proceedings is essential to protect the rights of probationers as set forth in federal and state law, as well as to maintain the credibility, and thus the effectiveness, of probation orders. Just as fundamentally, the proper and timely conduct of probation violation proceedings is necessary to vindicate the public trust. Failure of the court to take appropriate action when a convicted defendant who has been given the benefit of probation is then alleged to have violated that order erodes public confidence in the judicial system.

These rules are intended to codify the provisions of applicable case law and to provide clarity in areas of long-standing ambiguity. Their purpose is to provide a clear and predictable process whereby probation violation proceedings are to be commenced, conducted and completed.

One area of ambiguity involves terminology. These rules are entitled "Rules for Probation Violation Proceedings" and not "Rules for Probation Revocation Proceedings." This is an important distinction involving the essential difference between adjudication and disposition. Ambiguity concerning this distinction appears occasionally in the relevant case law, which almost uniformly refers to "probation revocation hearings." The problem is that when a probationer is alleged to have violated his or her probation order, the first purpose of the subsequent hearing is to adjudicate the factual question of whether that violation occurred. The decision to revoke probation, or order any other disposition, can proceed only if a violation is found. Most of the due process requirements that have evolved for these hearings relate to the process by which the court is to determine the factual issue. The nature of the alleged violation is essentially irrelevant to the factual determination of whether it occurred. In contrast, the issue of whether the probation order should be revoked (in many instances requiring the execution of a sentence of incarceration) focuses directly on the nature of the violation, among other factors. In addition, the issue of violation is essentially a factual matter whereas the dispositional decision of whether to revoke probation is essentially one of discretion.

Confusion on this distinction can affect proceedings significantly. For example, the preponderance of the evidence test at a probation violation hearing has nothing to do with the revocation decision; it is the evidentiary test by which the court must determine if a violation occurred. Conversely, the seriousness of the alleged violation has nothing to do with whether it occurred, but is an important consideration regarding revocation.

It is believed that often probation violation proceedings are not initiated because the Probation Department has no intention of recommending revocation and the incarceration it may require. As long as the proceeding is referred to, and believed to be for the purpose of, revocation and incarceration, there can be reluctance to allege a violation if the appropriate disposition is not revocation but rather the imposition of more stringent or intense probation requirements. The concept of a probation revocation hearing promotes a mistaken "all or nothing" perception. It implies that revocation is the purpose of the hearing and that if a violation is found, revocation must follow. In fact, the purpose of the hearing is to adjudicate the allegation, with the court having broad discretionary authority if a violation is found.

These rules seek to clarify the important difference between adjudicating the factual issue of whether a violation has occurred and the court's dispositional decision following such adjudication, not only by referring to the proceedings as "probation violation proceedings," but also by requiring a two-step procedure (Rule 5) and expressly defining the different purpose and procedures required for each step (Rule 7).

Throughout these rules 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 convicted, after trial or based on a plea of 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 individual charged with a probation violation, which is fundamentally distinct from the status of a person who is a criminal defendant, particularly in terms of procedural rights.

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