In addition to the following discussion, see the Michigan Judicial Institute’s probation violation Contested Hearing Checklist.
Note that under MCR 6.450 probationers may acknowledge a technical probation violation without a hearing. See Section 2.11(B) for a discussion of technical probation violation acknowledgments.
“Hearings on the revocation must be summary and informal and not subject to the rules of evidence or of pleadings applicable in criminal trials.” MCL 771.4(2). “In its probation order or by general rule, the court may provide for the apprehension, detention, and confinement of a probationer accused of violating a probation condition.” MCL 771.4(3). “The method of hearing and presentation of charges are within the court’s discretion, except that the probationer is entitled to a written copy of the charges constituting the claim that he or she violated probation and to a probation revocation hearing.” MCL 771.4(4).
MCL 771.4 “places an affirmative obligation on the trial court to . . . provide the probationer with a written copy of the charges constituting the probation violation and to conduct a probation revocation hearing.” People v Hendrick, 472 Mich 555, 562 (2005). “A defendant is entitled to receive written notice of a probation violation sufficiently in advance of the scheduled revocation hearing to allow him a reasonable opportunity to prepare his defense.” People v Irving, 116 Mich App 147, 151 (1982).
“The evidence against the probationer must be disclosed to the probationer.” MCR 6.445(E)(1). “The probationer has the right to be present at the hearing, to present evidence, and to examine and cross-examine witnesses.” Id. “The court may consider only evidence that is relevant to the violation alleged, but it need not apply the rules of evidence except those pertaining to privileges.” Id. “The state has the burden of proving a violation by a preponderance of the evidence.” Id.
“Probation violation hearings are summary and informal and are not subject to the rules of evidence or of pleading applicable in a criminal trial.” People v Pillar, 233 Mich App 267, 269 (1998). “The scope of these proceedings is limited and the full panoply of constitutional rights applicable in a criminal trial do not attach.” Id. “However, probationers are afforded certain due process at violation hearings because of the potential for loss of liberty.” Id. “Specifically, a probationer has the right to a procedure consisting of (1) a factual determination that the probationer is in fact guilty of violating probation, and (2) a discretionary determination of whether the violation warrants revocation.” Id. “[O]nly evidence relating to the charged probation violation activity may be considered at a violation hearing and only such evidence may provide the basis for a decision to revoke one’s probation.” Id. at 270 (trial judge erroneously considered evidence unrelated to the charged probation violation in decision to revoke the defendant’s probation).
“A trial court’s discretionary authority regarding the admission of evidence at a probation revocation hearing is broad.” People v Breeding, 284 Mich App 471, 479 (2009). “Except for the rules of evidence pertaining to privileges, a trial court ‘need not apply the rules of evidence’ in a probation revocation hearing.” Breeding, 284 Mich App at 479, quoting MCR 6.445(E)(1). “Probationers in Michigan have a right to confront witnesses in a probation revocation hearing pursuant to MCR 6.445(E)(1)[.]” Breeding, 284 Mich App at 483.1 “In addition, probationers also have certain due process rights at such a hearing because of the potential loss of liberty.” Id. “The liberty interest brings the probationer within the protection of the Fourteenth Amendment, even though revocation is not a stage of a criminal prosecution.” Id. “Furthermore, the due process rights applicable to a probation revocation hearing allow for procedures that are more flexible than those required during a criminal prosecution.” Id. at 483-484. “‘[T]he process [of admitting evidence at a probation revocation hearing] should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.’” Id. at 484, quoting Morrissey v Brewer, 408 US 471, 489 (1972).
In Morrissey, 408 US 471, 485-489, the United States Supreme Court instructed that there are “two important stages in the typical process of parole revocation[:]” (1) the arrest of the parolee and preliminary hearing and (2) the revocation hearing. (Emphasis added.) In Gagnon v Scarpelli, 411 US 778 (1973), the United States Supreme Court “extended the Morrissey due process requirements to probation revocation proceedings.” People v Jackson (Leroy), 63 Mich App 241, 245 (1975). However, “Michigan’s judicial warrant procedure coupled with the strict due process requirements of the revocation hearing is constitutionally equal or superior to the preliminary ‘minimal inquiry’ hearing and final revocation hearing procedure required by Morrissey and Gagnon.” Jackson (Leroy), 63 Mich App at 248 (“[i]n conjunction with a preliminary determination of probable cause, Michigan requires a revocation hearing which far exceeds the minimal due process requirements set forth in Morrissey and Gagnon”).
“Th[e] fundamental privilege against compulsory self-incrimination accompanies a criminal defendant throughout the entire course of every criminal prosecution, including both sentencing and any subsequent probation revocation proceeding.” People v Manser, 172 Mich App 485, 488 (1988) (“it was error for the trial court to call upon defendant where defendant had not testified or otherwise first waived the privilege [against self-incrimination]”).
“At the conclusion of the hearing, the court must make findings in accordance with MCR 6.403 and, if the violation is proven, whether the violation is a technical or non-technical violation of probation.” MCR 6.445(E)(2). MCR 6.403 provides, in relevant part, that “[t]he court must find the facts specially, state separately its conclusions of law, and direct entry of the appropriate judgment[; t]he court must state its findings and conclusions on the record or in a written opinion made a part of the record.” See Order Following Probation Violation Hearing, MC 433.
“A trial court must base its decision that a probation violation was proven on verified facts in the record.” People v Breeding, 284 Mich App 471, 487 (2009). “The evidence, viewed in a light most favorable to the prosecution, must be sufficient to enable a rational trier of fact to find a probation violation by a preponderance of the evidence.” Id. “Where a resolution of a factual issue turns on the credibility of witnesses or the weight of evidence, deference is given to the trial court’s resolution of these issues.” Id.
“[P]robation may not be revoked solely on the basis that the probationer was arrested.” People v Pillar, 233 Mich App 267, 269 (1998). “There must be verified facts in the record from which the court can find by a preponderance of the evidence that a violation was committed.” Id. at 270. Further, revocation is limited to the circumstances set out in MCL 771.4(2), MCL 771.4b, and MCR 6.450.2
“The standard of proof in a probation revocation hearing is less than in a regular criminal trial.” People v Tebedo, 107 Mich App 316, 320 (1981). “When revocation is sought on the basis of a subsequent violation of the criminal law, there must be proof sufficient to allow the court to find by the preponderance of the evidence that defendant committed the new offense.” Id. at 320-321. “There must be sufficient proof on each element of the offense.” Id. at 321. “Because the standard of proof is lower than the reasonable doubt standard employed in a criminal trial, probation may be revoked before the trial on the substantive offense, and a decision to revoke probation will be valid even if the defendant is ultimately acquitted of the substantive crime.” Id. “For the same reasons, the subsequent reversal of a conviction on a criminal offense would not require vacation of a probation revocation which was based on that offense if the testimony or the defendant’s admissions at the revocation hearing were sufficient to establish by a preponderance of the evidence that the defendant committed the offense.” Id.
“If a probationer is ordered to pay costs as part of a sentence of probation, compliance with that order must be a condition of probation.” MCL 771.3(8). “Subject to the requirements of [MCL 771.4b], the court may only sanction a probationer to jail or revoke the probation of a probationer who fails to comply with the order if the probationer has the ability to pay and has not made a good-faith effort to comply with the order.” MCL 771.3(8). “In determining whether to revoke probation, the court shall consider the probationer’s employment status, earning ability, and financial resources, the willfulness of the probationer’s failure to pay, and any other special circumstances that may have a bearing on the probationer’s ability to pay.” Id. “The proceedings provided for in [MCL 771.3(8)] are in addition to those provided in [MCL 771.4].” MCL 771.3(8).
“[MCL 769.1k(1)3 and MCL 769.1k(2)4] apply even if the defendant is placed on probation, probation is revoked, or the defendant is discharged from probation.” MCL 769.1k(3).
If the defendant is placed on probation, any restitution ordered under MCL 769.1a, MCL 780.766, and/or MCL 780.826 must be a condition of that probation. MCL 769.1a(11); MCL 780.766(11); MCL 780.826(11). The court may revoke probation if the defendant fails to comply with the order and if the defendant has not made a good faith effort to comply with the order. MCL 769.1a(11); MCL 780.766(11); MCL 780.826(11). In determining whether to revoke probation, the court must consider the defendant’s employment status, earning ability, and financial resources, the willfulness of the defendant’s failure to pay, and any other special circumstances that may have a bearing on the defendant’s ability to pay. MCL 769.1a(11); MCL 780.766(11); MCL 780.826(11). However, a defendant must not be imprisoned, jailed, or incarcerated for a violation of probation or otherwise for failure to pay restitution as ordered unless the court determines that the defendant has the resources to pay the ordered restitution and has not made a good faith effort to do so. MCL 769.1a(14); MCL 780.766(14); MCL 780.826(14).
1 “In Crawford [v Washington, 541 US 36 (2004)], the [United States Supreme] Court held that in a criminal prosecution, the introduction of an out-of-court testimonial statement is precluded unless the witness is unavailable and the defendant has previously had an opportunity to cross-examine the witness.” People v Breeding, 284 Mich App 471, 480 (2009). However, “the Sixth Amendment right to confrontation, as defined and applied in Crawford, does not apply to probation revocation proceedings.” Breeding, 284 Mich App at 482. “Rather, a due process standard applies in determining the admissibility of statements made by out-of-court declarants at probation violation proceedings, regardless of whether the statements are testimonial or nontestimonial in nature.” Id.
2 Specifically, MCL 771.4(2) provides in relevant part: “All probation orders are revocable subject to the requirements of [MCL 771.4b], but revocation of probation, and subsequent incarceration, should be imposed only for repeated technical violations, for new criminal behavior, as otherwise allowed in [MCL 771.4b], or upon request of the probationer.” MCL 771.4b and MCR 6.450 address technical probation violations; see the discussion in Section 2.11.
3 MCL 769.1k(1) requires the court to impose the minimum state costs as set out in MCL 769.1j, and allows the court to impose any authorized fines, any authorized costs, and any cost reasonably related to the actual costs incurred by the trial court. See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 8, for detailed information about fines, costs, and assessments.
4 “In addition to any fine, cost, or assessment imposed under [MCL 769.1k(1)], the court may order the defendant to pay any additional costs incurred in compelling the defendant’s appearance.” MCL 769.1k(2). See the Michigan Judicial Institute’s Criminal Proceedings Benchbook, Vol. 2, Chapter 8, for discussion of what constitutes a cost incurred in compelling the defendant’s appearance.