Massachusetts Supreme Judicial Court Rules a Defendant is Entitled to Call Witnesses at a Probation Surrender Hearing

In an opinion that should have been obvious to everyone who works in the judicial system, the Massachusetts Supreme Judicial Court today affirmed that when a defendant is on probation and is accused of violating his probation, he is entitled to call his own witnesses to testify at the probation surrender hearing.  The name of the case is Commonwealth v. Hartfield.

The defendant was on probation (with a two and a half year suspended jail sentence hanging over his head) after pleading guilty to possession of marijuana with intent to distribute.  While on probation, the defendant’s girlfriend’s 17-year-old daughter accused him of violently raping her.  The alleged victim’s account was detailed and horrifying.  She told investigators that a man, who she believed to be the defendant, entered her bedroom, threw a shirt over her head so she couldn’t see, and said he would stab her and her siblings if she screamed.  The man then took off her clothes and vaginally raped her.  A subsequent investigation revealed the defendant’s semen was on her shorts.  However, there was some evidence that the alleged victim had fabricated her story.  She and the defendant hated each other to the point that the alleged victim’s mother forbade them from being in the apartment at the same time.  Further, the alleged victim’s mother provided an alibi for the defendant, telling the police she was with him at his apartment all night when the rape allegedly happened.   Further, while the defendant’s semen was found on the alleged victim’s shorts, there was no semen found on the swabs taken from the alleged victim’s vagina.

Nevertheless, the alleged victim’s accusation was all it took to get the defendant hauled into court for a probation surrender hearing.  Probation, while obviously better than jail, is a minefield for defendants.  A probationer who has allegedly violated his probation is entitled to a hearing, but the standard of proof is preponderance of the evidence (more likely than not) rather than reasonable doubt.  The ruled of evidence do not apply, so reliable hearsay is admissible against the defendant (and it’s not a requirement that the probation department call any live witnesses at the hearing).  Once a probationer is found in violation, the judge has complete discretion in sentencing and can sentence the probationer up to the maximum penalty.

In this case, the probation department chose to present its evidence without calling the alleged victim to testify (instead, it introduced a transcript of her grand jury testimony).  After the probation department rested, the defendant called the alleged victim to the witness stand, but the judge decided she “shouldn’t have to go through recounting this event several times” and refused to allow the defense attorney examine her.  The judge found the defendant in violation of his probation and imposed the two and a half year jail sentence.  A jury later found the defendant not guilty of the rape charge.

The defendant appealed the finding that he had violated his probation, arguing that his constitutional right to mount a defense had been abridged by the judge.  The Supreme Judicial Court agreed and reversed his finding of a probation violation.  The Court ruled a probationer has a due process right to present a defense, which includes the right to call witnesses who will offer testimony favorable to his defense.  However, the probationer’s right to call witnesses can be outweighed if calling the witness would be unduly burdensome.  The Court said in determining whether a witness would be unduly burdened, a judge should consider the significance of the proposed testimony, whether the testimony would be cumulative of previously-offered evidence, and whether the witness might suffer physical, psychological, or emotional damage by testifying.  The Court rejected a rule that would bar a defendant from ever calling an alleged sexual assault victim to testify despite the possibility of inflicting emotional trauma on the alleged victim.

This is an important decision.  The deck is already heavily stacked against defendants facing probation violation hearings.  To suggest a defendant cannot call a witness to testify on his behalf is outrageous.