11.3Probation Violation Hearings1
If the juvenile was apprehended and subjected to a detention hearing under MCR 3.944(B), a probation violation hearing must be held only if the juvenile denied violating probation or remained silent at the detention hearing. MCR 3.944(B)(5)(b). The probation violation hearing must be held within 42 days of the detention hearing. Id. “If the hearing is not commenced within 42 days, and the delay in commencing the hearing is not attributable to the juvenile, the juvenile must be released pending hearing without requiring that bail be posted.” Id.
If the court did not order the juvenile to be apprehended when it received the petition alleging a probation violation, there does not appear to be a time requirement for holding the probation violation hearing. See MCR 3.944(A)(1)(a). All that is required is sufficient notice under MCR 3.920. MCR 3.944(A)(1)(a).
A probation violation hearing is considered to be a dispositional hearing rather than an adjudicative hearing because “[t]he hearing is conducted only to determine whether probation has been violated; the hearing does not result in a conviction on the underlying crime.” In re Scruggs, 134 Mich App 617, 622 (1984). However, a juvenile has rights—contained in applicable court rules and required by due process—at a probation violation hearing. See id. at 621; MCR 3.944(C)(1). MCR 3.944(C)(1) states that a juvenile has the following rights at a probation violation hearing:
“(a) the right to be present at the hearing,
(b) the right to an attorney pursuant to MCR 3.915(A)(1),[2]
(c) the right to have the petitioner prove the probation violation by a preponderance of the evidence,
(d) the right to have the court order any witnesses to appear at the hearing,
(e) the right to question witnesses against the juvenile,
(f) the right to remain silent and not have that silence used against the juvenile, and
(g) the right to testify at the hearing, if the juvenile wants to testify.”
There is no right to a jury trial at a probation violation hearing. MCR 3.944(C)(2).
The Michigan Rules of Evidence, other than those with respect to privileges, do not apply at a probation violation hearing. MCR 3.944(C)(2).
A probationer cannot be compelled to testify against himself or herself at a probation violation hearing. See People v Manser, 172 Mich App 485, 488 (1988). See also MCR 3.944(C)(1)(g).
“[E]vidence of a defendant’s failure to respond to an accusation of wrongdoing is inadmissible to prove guilt even if the defendant had, prior to his [or her] silence, waived his [or her] right to remain silent.” People v Staley, 127 Mich App 38, 41-42 (1983). This rule applies to probation revocation hearings. Id. at 42.
A court has the authority to call or examine witnesses and to order production of additional evidence or witnesses:
“If at any time the court believes that the evidence has not been fully developed, it may:
(1) examine a witness,
(2) call a witness, or
(3) adjourn the matter before the court, and
(a) cause service of process on additional witnesses, or
(b) order production of other evidence.” MCR 3.923(A).
D.Probation Violation Based on Finding of Responsibility For an Offense
A juvenile may be found to have violated probation based on a finding of responsibility for an offense from a plea or at trial. MCR 3.944(C)(3).
It is not necessary to delay a probation revocation hearing because proceedings involving the underlying offense against the probationer are pending and involve the same conduct for which revocation is sought. People v Nesbitt, 86 Mich App 128, 136 (1978). However, if a probation revocation hearing is conducted before a trial involving the same facts, the probationer’s testimony at the hearing and any evidence derived from it are admissible only for purposes of impeachment or rebuttal at the subsequent trial. People v Rocha, 86 Mich App 497, 512-513 (1978). A probationer must be advised before he or she takes the stand at the revocation hearing that his or her testimony and its fruits will not be admissible against him or her at a subsequent criminal trial on the underlying offense. Id. at 513.
A probationer is not subjected to double jeopardy where the same criminal activity is the subject of both probation violation and criminal proceedings. People v Burks, 220 Mich App 253, 256 (1996). Jeopardy does not attach at a probation revocation hearing because it is not a criminal prosecution and “a determination by a trial court that a probationer has violated the terms of the probation order does not burden the probationer with a new conviction or expose the probationer to punishment other than that to which the probationer was already exposed as a result of the previous conviction for which the probationer was placed on probation.” Id. at 256.
1 Criminal cases often refer to probation violation hearings as “probation revocation hearings.” Some criminal cases are discussed in this subsection where no juvenile case law on point exists. However, it is important to note that, although a reference may be made to “probation revocation hearings,” the court may, but is not required to, revoke probation if it finds that a probation violation has been committed. See MCR 3.944(E)(1). “Instruments of restraint . . . may not be used on a juvenile during a court proceeding unless the court finds that the use of restraints is necessary due to one of the” factors set forth in MCR 3.906(A)(1)-(3). MCR 3.906(A). A determination that restraints are necessary must be made in compliance with MCR 3.906(B), and any use of restraints must comply with MCR 3.906(C). See Section 1.5 for more information on the use of restraints in juvenile proceedings.
2 See Section 6.3(C).