Massachusetts Probation Violation FAQs

A probation violation in Massachusetts arises when the probation department believes a probationer has failed to comply with any condition of probation. The most common triggers are: a new criminal arrest or charge; a failed drug test; failure to report to the probation officer; failure to complete a required program such as a Batterer’s Intervention Program or substance abuse treatment; failure to pay fines or restitution; and failure to maintain employment or residence as required. A new arrest alone, without any conviction, can trigger a probation violation and surrender even if the underlying charge is later dismissed. See: What Happens When You Violate Probation in Massachusetts.

When the probation department determines that a probationer has violated a condition of probation, it issues a surrender warrant. A surrender warrant is not an arrest warrant for a new criminal offense, it is an authorization to take the probationer into custody for a probation violation hearing. A probationer who has an active surrender warrant is subject to arrest by any law enforcement officer. A probationer who knows a surrender warrant has issued should not wait for arrest, retaining counsel immediately and arranging a voluntary surrender, where possible, can affect the conditions of release at the probation surrender hearing.

At the initial surrender hearing, the probationer appears before a judge, typically within 24-48 hours of being taken into custody. The judge determines whether the probationer will be held in custody pending a final violation hearing or released on conditions. The judge applies a “more likely than not” standard to determine whether the probationer poses a risk of flight or danger to the community if released. Defense counsel at the initial hearing presents evidence that the probationer will appear for the final hearing and does not pose a danger, through stable employment, housing, family ties, and the specific circumstances of the alleged violation.

The standard of proof at a Massachusetts probation violation hearing is preponderance of the evidence, more likely than not. This is substantially lower than the beyond-a-reasonable-doubt standard at a criminal trial. The Commonwealth does not need to prove the violation beyond a reasonable doubt. A judge who concludes it is more likely than not that the probationer committed the alleged violation may find a violation even if the underlying criminal charge would not survive trial.

Yes. Under Massachusetts law and Commonwealth v. Durling (407 Mass. 108, 1990), hearsay evidence is admissible at a probation violation hearing when it carries sufficient indicia of reliability. A police report, a laboratory report, a probation officer’s account of what a witness told them, and a victim’s out-of-court statement can all be admitted and considered by the judge. The right to confront witnesses under the Sixth Amendment applies in a reduced form at probation hearings, the probationer has the right to hear and challenge the evidence but not the full confrontation rights available at trial.

No. A not-guilty verdict at trial on a new criminal charge does not automatically resolve a probation violation based on the same conduct. The jury found the Commonwealth failed to prove guilt beyond a reasonable doubt. The probation court can still find, by a preponderance of the evidence, that the probationer committed the conduct that triggered the violation. The two proceedings use different standards of proof and the probation finding is not bound by the criminal verdict. A dismissal of the underlying charge is generally more protective of the probation violation case than a not-guilty verdict, because a dismissal typically means the evidence was insufficient to establish probable cause rather than insufficient to prove guilt at trial.

Yes. A CWOF is a conditional disposition. If the probationer violates the conditions of the CWOF, the judge may hold a violation hearing and, upon a finding of violation, convert the CWOF to a guilty finding and impose a sentence. The conversion to a guilty finding has significant consequences: it becomes a criminal conviction under Massachusetts law, triggers CORI reporting as a conviction, creates a federal immigration conviction under 8 U.S.C. § 1101(a)(48)(A) if it was not already one, and may affect professional licensing. For non-citizens, a CWOF that converts to a guilty finding on a domestic violence charge establishes deportability under 8 U.S.C. § 1227(a)(2)(E)(i). See: Immigration Consequences of Massachusetts Criminal Charges.

If the judge finds no violation, probation continues on its existing terms. If the judge finds a violation, the possible outcomes include: continuation of probation with additional conditions; extension of the probation period; modification of conditions, such as adding substance abuse treatment or imposing a curfew; revocation of probation and imposition of a sentence that was previously suspended; or, in a CWOF case, conversion to a guilty finding and imposition of a sentence. The severity of the outcome depends on the nature and seriousness of the violation, the probationer’s history on probation, and the underlying charge.

Yes. When a CWOF is converted to a guilty finding after a violation, the judge may impose any sentence authorized for the underlying offense, including a committed sentence in a house of correction or state prison, depending on the charge. A first-offense CWOF on a misdemeanor assault and battery charge, for example, can result in a sentence of up to two and one-half years in a house of correction if the CWOF is revoked and a guilty finding entered. The judge is not bound by the terms of the original CWOF disposition once a violation is found.

When the probation violation is based on a new criminal charge, the probation court is not required to wait for the criminal case to resolve before holding a violation hearing. Some judges continue the probation violation matter pending resolution of the new charge, and some do not. Defense counsel at the violation hearing may request a continuance pending the criminal case outcome and should argue that proceeding before resolution of the criminal charge is prejudicial when the probationer’s ability to contest the facts is limited by the pending criminal case. The strategy for managing the criminal case and the probation violation simultaneously requires coordination from the first appearance.