Do You Have the Right to Cross-Examine Witnesses at a Probation Revocation Hearing?

Many criminal sentences in Georgia include a term of probation. While on probation, a person is not in jail, but they are subject to a number of conditions that must be strictly followed in order to remain free. If the state has reason to believe a probationer has violated any of their conditions, a hearing must be held before a judge to determine whether probation should be revoked, and if so, whether the probationer should be sent to prison.

State Failed to Produce “Firsthand” Witnesses to Probationer’s Alleged Non-Compliance

A defendant’s rights in a probation revocation hearing are not as strong as those required for a criminal trial. That said, there are still significant due process requirements that prosecutors and the courts must follow before revoking someone’s probation. As a recent Georgia Court of Appeals decision, Grigg v. State, demonstrates, these procedures include the right to cross-examine witnesses against the probationer.

In this case, the probationer pleaded guilty in 2017 to drug possession and weapons charges. The trial court’s sentence was for a period of seven years, with two served in jail and the remaining five on probation. Six years into that sentence, prosecutors filed a petition to revoke the probationer’s probation, alleging he had refused to participate in a substance abuse treatment program, which was one of his mandatory conditions for release.

At a subsequent probation revocation hearing, the state called just one witness, an officer with the Department of Community Supervision (DCS). She testified that she was “not quite sure” about the exact requirements the probationer had to meet with respect to the drug program. She simply received a form stating the defendant “did not want to complete” the program, and on that basis she applied for an arrest warrant.

The probationer’s attorney objected to this testimony, arguing it was inadmissible hearsay. The trial court overruled the objection and ultimately revoked the defendant’s probation. The Court of Appeals reversed, however, holding the trial court violated the probationer’s right to due process.

Specifically, the appellate court said the probationer had the right to cross-examine any witness who had “firsthand knowledge” of his alleged refusal to participate in the mandatory drug treatment program. The state either had to produce a witness with such knowledge, or provide evidence to explain why such a witness was unavailable for the hearing. The trial court effectively erred by simply taking the DCS officer’s testimony as conclusive proof of the probationer’s refusal, even though the officer never even spoke to the probationer. As such, the probationer was entitled to a new revocation hearing.

Contact Hawkins Spizman Trial Lawyers Today

Anytime that you face the potential loss of your liberty, you have the right to demand the government prove its case against you. An experienced Atlanta probation revocation lawyer can help. Call Hawkins Spizman Trial Lawyers today to schedule a free consultation. We serve clients throughout Georgia including Atlanta, Dunwoody, Alpharetta, Cobb County, Fulton County, Gwinnett County, Johns Creek and Sandy Springs.

Source:

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