Understanding Evidentiary Issues At A Probation Surrender Hearing

Posted over 4 years ago. Applies to Massachusetts, 4 helpful votes



Overview of a Probation Surrender

If your probation officer believes that you have violated a term or condition of your probation, the PO will serve you with a Notice of Probation surrender that lists the ways that you have allegedly violated your probation. If the PO wishes to try to have you held in custody pending the Final Surrender Hearing, he can ask for a Preliminary Surrender Hearing. If the PO can show that there is probable cause to believe that you violated your probation, a Final Surrender Hearing will be scheduled. The Final Surrender Hearing is a court proceeding where the probation officer tries to convince a judge, using a preponderance of the evidence standard, that you have violated your probation. The probation officer tries to prove his case by introducing evidence of the alleged violations. Common examples of evidence used at a Final Surrender Hearing are the probation officer's own observations, testimony of live civilian and law enforcement witnesses, drug test results, and police reports.


Two Major Differences Between A Probation Surrender Hearing and A Trial

One major difference between a criminal trial and a probation surrender hearing is the level of proof the Commonwealth has to meet. In a trial, the prosecutor must convince the finder of fact (the judge or the jury) that the defendant is guilty beyond all reasonable doubt. In a probation surrender, the probation officer must convince the judge that the probationer violated his probation by a preponderance of the evidence, which is a much lower standard than proof beyond a reasonable doubt. The second major difference between a trial and a surrender hearing is that hearsay is admissible at a surrender hearing, whereas hearsay is not admissible at trial absent an exception to the hearsay rule. Hearsay is an out of court statement offered for its truth. A common example of hearsay is the text of a police report that alleges that the probationer committed some crime. An example of non-hearsay evidence is the live testimony of a witness.


Admissibility of Hearsay Evidence at the Final Surrender Hearing

Unlike a trial, hearsay is admissible at the probation surrender hearing. A common way that hearsay is used against the probationer is when the probation officer introduces the contents of a police report into evidence instead of having the police officer who wrote the report testify in person. Hearsay evidence is specifically allowed under RULE 6(a) of the District Court Rules for Probation Violation Hearings.


Sufficiency of Hearsay Evidence In Proving a Violation

The more important issue is not whether the hearsay evidence is admissible, but whether the admitted hearsay is legally sufficient to prove a probation violation, when the hearsay evidence is the only evidence of a probation violation. Hearsay is legally sufficient to prove a violation when such evidence is 1) "substantially trustworthy and demonstrably reliable" and 2) when the alleged violation is charged or uncharged criminal conduct, the probation officer has "good cause " for proceeding without a live witness with personal knowledge. A good lawyer helps your case by showing the judge the ways that the hearsay evidence is not substantially trustworthy and demonstrably reliable by pointing out ways the allegations in the report are uncorroborated, not observed by police officers, not provided by a disinterested witness, and are general and conclusory instead of factually detailed, and that the PO has not shown good cause for not using a live witness.



Hearsay evidence is admissible at a final surrender hearing. For violations that allege criminal conduct, the hearsay evidence is sufficient to prove a violation only if the evidence is substantially reliable and there is good cause shown for not using a live witness. For violations of probation that are not criminal conduct, i.e. failure to abide by curfew, failure to submit to urine test, the hearsay evidence can be sufficient to prove a violation if it is substantially reliable without a showing of good cause for no live witness. If you are facing a probation surrender, you need an attorney who can analyze the evidence against you and argue effectively to the judge that the probation officer has not proven that you violated your probation.

Additional Resources

Law Office of Dominic L. Pang

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