Your Probation Can't Be Violated Based Just On Hearsay

If you have been charged with violating your probation, you should know that your probation can't be violated based just upon hearsay. Hearsay is a statement made out of court that is offered for its truth in court, and although hearsay evidence is admissible at a violation-of-probation hearing, your probation can't be violated if the only evidence that the prosecutor has is hearsay.

This situation arose in the case of John McDoughall versus the State of Florida where the facts were as follows:

"McDoughall was placed on three-years probation for possession of oxycodone and marijuana. One of the conditions of probation was that McDoughall not commit any new crimes. While on probation, McDoughall was pulled over for a traffic violation. As a result of what occurred during the traffic stop, McDoughall was charged with: (1) possession of a weapon/ammunition by a felon; (2) trafficking hydromorphone; (3) trafficking oxycodone; (4) possession of alprazolam; (5) driving with a suspended license; (6) possession of Ritalin; and (7) possession of methadone.

At the violation of probation (“VOP”) hearing, the trial court heard testimony from the officers who performed the traffic stop. The officer who initiated the stop discovered that McDoughall's license was suspended and that he was on felony probation for opiate possession. A second officer (“responding officer”) arrived on the scene and placed McDoughall under arrest for violating his probation by driving with a suspended license. Before the vehicle was towed, the responding officer conducted a vehicle inventory, which revealed “approximately 150 pills ... of different prescription medications” in the center console. The responding officer testified that she did not personally test the pills but that she contacted Poison Control and sent the pills to the lab to confirm that they were oxycodone."

The trial judge deciding McDoughall's case ruled that he violated his probation in part because of his new criminal charges of drug possession, trafficking in drugs, and possessing drugs without a prescription. McDoughall appealed the trial judge's decision because the only evidence presented at his violation-of-probation hearing identifying the pills as oxycodone was hearsay.

The appeals court agreed with McDoughall. That court stated that while hearsay is admissible at a violation-of-probation hearing, a person's probation cannot be revoked solely on the basis of hearsay evidence. The hearsay has to be corroborated by non-hearsay evidence before a judge can find that a person violated his or her probation.

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