Probation violations need not be proven beyond a reasonable doubt. All that’s required is sufficient evidence to “reasonably satisfy” the judge that a violation occurred. What constitutes competent evidence of a probation violation? And how much proof is enough?
There aren’t many appellate cases that really dig into this question. Let’s start with a few things we know.
First, the rules of evidence do not apply at a probation violation hearing. G.S. 15A-1345(e). Hearsay is admissible and, as described in this prior post, may play a prominent role in a trial judge’s finding of violation and ultimate decision to revoke. That’s true even when the alleged violation is a new criminal offense that has yet to result in a conviction. State v. Murchison, 367 N.C. 461 (2014).
Second, even the fruits of an unlawful search may be admitted at a violation hearing. State v. Lombardo, 306 N.C. 594 (1982) (discussed here).
Third, testimony from unconfronted witnesses can support a finding of violation—but only if the trial court makes a finding of good cause for not allowing confrontation. This prior post describes the due process (not Sixth Amendment) confrontation right that applies at a probation violation hearing—including a reminder that a defendant who fails to object to a lack of confrontation at the hearing generally won’t be able to raise the issue for the first time on appeal.
With that flexible evidentiary framework in place—and an abuse-of-discretion standard for appellate review, State v. Tennant, 141 N.C. App. 524 (2000)—it’s hard to find a case where the evidence was insufficient to support a finding of violation.
In fact, a question that arises in light of the recent case of State v. Hancock, __ N.C. App. __, discussed here, is whether a probation officer’s sworn violation report, standing alone, is enough. In Hancock, you may recall, the probationer was revoked for a violation of the commit no criminal offense condition, proved via nothing more than the facts alleged in support of a different violation (a use, possess or control violation). The report, sworn to two years earlier by a since-retired officer, and read into evidence by a different officer, said that drugs were found during a warrantless search.
Our appellate courts have long said that a verified violation report of a probation officer is “competent evidence” to establish a violation. State v. Duncan, 270 N.C. 241 (1967). But even if that general rule has been around for a while, it’s fair to say that Hancock may represent a new floor in terms of just how little is required to support a trial courts finding of violation. The mere saying so—two years earlier, by a different officer, without confrontation, in support of the violation of a different condition—did the trick. (For what it’s worth, it does not appear that the defendant objected to the lack of confrontation in the trial court.)
It’s not clear to me whether Hancock really does establish a new minimum standard of proof, or whether it was a bit of a fluke. The court of appeals noted that the defendant “d[id] not contest” the use, possess or control violation, slip op. at 10, and maybe that left the information alleged in support of it fair game for all of the violations before the court. But you could understand why defendant wasn’t focused on that particular violation on appeal: he was revoked, and the commit no criminal offense violation was the only revocation-eligible violation in the mix.
Regardless, I want to conclude by noting a category of violation that surely requires more than a bare allegation to prove. I would describe it as cases in which it is impossible for the court to determine whether a violation has occurred before gathering some additional information the condition allegedly violated. For example, if the alleged violation is a failure to pay money according to a schedule set by the probation officer, the judge hearing the matter will first need evidence of the payment schedule itself. Similarly, if the defendant was supposed to complete community service hours according to a schedule set by the probation officer, the judge cannot find a violation without first hearing evidence of the deadlines set by the officer. State v. Boone, 225 N.C. App. 423, 425 (2013) (“[The probation officer’s] conclusory testimony that defendant was in arrears is insufficient to support a finding that defendant had willfully violated the terms of his probation by failing to pay the required fees or perform community service on time.”). I think the same type of logic could apply to conditions like a curfew. If the probation officer sets the time by which a probationer must be at home, the State would need to offer proof of that time to pave the way for a finding that it was violated.