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.

More Information on Probation Laws