April 30, 1999
VIOLATION OF PROBATION
By: Benjamin H. Hardy, Research Analyst
You asked whether a probationer who (1) received probation on condition that he not commit any new crime and (2) has been arrested for a new crime could be judged in violation of his probation before he has been convicted of that crime. You also asked for a legislative history of the violation of probation law (CGS § 53a-32).
The law on violation of probation dates from adoption of the substantive criminal code, 1969 PA 828. Our review of its legislative history reveals no indication of intent concerning your question. It appears the drafters drew its language from the federal Administrative Procedure Act.
Under the law, Connecticut's standard for judging violation of probation differs from that required for a criminal conviction. In 1969, no revocation of probation or conditional discharge could be ordered unless “reliable and probative evidence” established the violation. By contrast, a criminal conviction requires proof beyond a reasonable doubt.
In 1994 the appeals court held that the state need not obtain a conviction to establish a violation of probation arising out of criminal conduct. A violation of probation required the trial court only to believe the evidence adequate or sufficient to prove the violation (State v. Deptula, 34 Conn. App. 1).
But later that year the Supreme Court reversed a probation revocation, holding that the state must prove a probation violation by a fair preponderance of the evidence (State v. Davis, 229 Conn. 285). The probationer Davis had been arrested on criminal charges. The Appeals Court applied this ruling in reversing State v. Torres (35 Conn. App. 107, 1994); the probationer Torres had been similarly arrested. We attach photocopies of the two decisions.
The following year PA 95-142 prohibited revocation of probation unless the violation is established by reliable and probative evidence and a “preponderance of the evidence.” The legislative history of PA 95-142 is silent on the intent of this language, which is current law. But almost certainly it accommodates the 1994 decisions.
According to Mr. Terrence Borjeson, a program manager for adult supervision in the judicial branch, in order to secure release a probationer gives up certain rights under Article Four of the U. S. Bill of Rights, one of which is the level of proof necessary to judge a violation of probation. But he adds that in practice, a probationer arrested for a crime may not be judged in violation of his probation terms, depending upon circumstances. A probationer with a substantial period of good behavior, arrested for a minor crime unrelated to his original conviction, might not be judged in violation pending resolution of the new allegation. In such a case the judicial branch might notify the prosecutor that the existing terms of probation were being maintained pending the outcome. If you wish to discuss this with Mr. Borjeson, you can reach him by telephone at (860) 721-0936.
Mr. Borjeson called to our attention Payne v. Robinson (207 Conn. 565, 1988). In this case a probationer argued before the Supreme Court that failure to apply the exclusionary rule during his probation violation hearing violated his right to equal protection of the law. The court held that a probation hearing could admit evidence that might be excluded in a trial. We attach a photocopy of the ruling.