Defendants caught (either by police or probation officers) violating a condition of probation are subject to having their probation revoked (taken away) and all or part of the original suspended jail or prison sentence reimposed. Because one typical condition of probation is to obey all laws, a probationer who is rearrested on even a minor charge may be subject to penalties for both the current arrest and the probation violation.
(Learn more about how probation works in a criminal case in Nolo's section on Probation).
Must the Prosecution Secure a New Conviction Before Revoking Probation?
If a probation violation is discovered and reported, it is likely that the court will conduct a probation revocation hearing. If the defendant violated probation by breaking a law, the probation revocation hearing will probably take place after the new offense has been disposed of. If the violation was not a new criminal offense but nevertheless broke a condition of probation (for instance, socializing with people the judge prohibited a defendant from contacting), then the revocation hearing may take place as soon as practicable after the violation is reported. Defendants are entitled to written notification of the time, place, and reason for the probation revocation hearing.
The revocation hearing is not the same as a trial. The burden of proof for the prosecution is typically not "beyond a reasonable doubt." Rather, it's something less, such as having to prove that, "more likely than not," the violation took place. Because the burden of proof is less than at a trial, a probationer can have his probation revoked even if he was, in fact, tried for theincident and acquitted.
The Probation Revocation Hearing
A probation revocation hearing happens in court, without a jury. Both the defense and prosecution may present evidence to show the judge why the defendant should or should not be subjected to whatever penalty the judge originally imposed. The defendant is allowed counsel at this hearing, but the judge does not have to follow strict rules of evidence.
Additionally, the legal standard in a probation revocation hearing is lighter than the “beyond a reasonable doubt” standard in criminal trials. In the revocation hearing, as noted above, the prosecution will only have to prove by a preponderance of the evidence that the defendant violated a condition of probation. These legal standards are difficult to quantify, but essentially this means that it doesn’t take as much evidence, or that the evidence doesn’t have to be as compelling, to revoke probation as it does to prove guilt at trial. In essence, probation is a privilege that can be lost more easily than one’s initial freedom.
Bargaining Over a Revocation
When a defendant arrested on new charges is found also to be in violation of an earlier probation order, the defense may negotiate a new plea bargain to cover both offenses in one package deal. This is especially common in busy, big-city courts where calendars are backlogged.
Check out Nolo's section on Plea Bargaining to learn how (and why) these deals are made.
This article was excerpted from The Criminal Law Handbook, by Paul Bergman, J.D., and Sara J. Berman, J.D.