Probation Violations

Violations of probation can be difficult to defend for at least two reasons:

1. A person charged with violating his probation is not entitled to have a jury decide whether he committed a violation; judges alone make that decision.
2. The legal standard of proof in a violation-of-probation hearing is lower than that in a criminal trial.  Therefore, it is often easier for a prosecutor to prove to a judge that a person violated her probation than it is to prove to a jury that a criminal defendant committed a crime.

The news is not all bad, however, since certain rules apply in violation proceedings that help protect the rights of those accused of violating their probation.  For example, a person does not violate his probation if his failure to do something was not willful.  Thus, if a person on probation fails to pay restitution because he lost his job and now has no money, his failure to pay restitution was not willful and therefore not a violation.

Or to take another example, a person cannot be found to have violated his probation if his alleged violation was not substantial in nature.  Thus, in one Florida case, a person who was on community control was given permission by the judge to attend church services on Sundays between 8:00 a.m. and noon.  One particular Sunday, however, he went to the bishop’s home for group counseling after the church service had ended and did not return to his own home until 5:30 p.m.  Even though he returned home more than five hours after he was supposed to, an appellate court ruled that his violation was not willful and substantial.