What Kind of Evidence is Allowed at a Violation of Probation / Parole Hearing in Pennsylvania?

Posted by Joseph D. Lento | Oct 20, 2017 | 0 Comments

The stakes are high when a person is accused of violating his or her probation or parole in Pennsylvania.  No one wants to have to face the potential consequences of a violation of probation hearing or a parole revocation hearing, but if an accused finds him or herself in such an unfortunate position, the accused, in addition to his or her family, must understand the dynamic involved.  With an understanding of this dynamic and also the evidence that can be considered, the accused will be able to take the necessary steps to try to achieve a favorable outcome when it is alleged that there is a violation of probation or parole.

Will my probation officer or parole agent be "against" me at the violation hearing?

Although there are exceptions, by the nature of the proceeding itself, the accused's probation officer or parole agent will generally be adverse to the accused's interests.  In violation of probation hearings in Pennsylvania, the prosecutor generally will defer to the accused's probation officer at a minimum, and often may try to make the probation officer's recommendation more severe yet.  The accused's back judge (the judge who sentenced the accused) will strongly consider the position of the accused's probation officer and the prosecutor.  In Pennsylvania parole violation hearings, the hearing officer, or whomever the fact finder(s) may be, will generally give the parole agent free rein. 

The question that arises is, "Who does the accused have to fight for them at a violation of probation or parole revocation hearing in Pennsylvania?"  The hope would be that an experienced and strategic attorney will be in the accused's corner.  

Understanding that such proceedings generally take place in a hostile forum, an effective attorney will understand that the Commonwealth of Pennsylvania, represented by the probation officer and the prosecutor, or the parole agent, may try to take liberties with an accused's rights.  Understanding what kind of evidence is allowed at a violation of probation hearing or a parole revocation hearing, and by extension, what kind of evidence is not allowed, can give the person accused of violating probation or parole a fighting chance of a favorable outcome.

Do I have the same rights in a probation or parole violation hearing as I would in a criminal trial?

The unfortunate reality for defendants accused of violating their probation or parole is that strict evidentiary rules and the United States Constitution's Fourth and Fifth Amendments' exclusionary rules need not be applied as vigorously in parole and probation revocation hearing as in trial.  For example, the Pennsylvania Parole Board acted properly in revoking parole and recommitting a parolee on the basis of evidence which had been suppressed by a federal court, although the evidence was derived from the parolee's immunzed testimony supplied to the Drug Enforcement Agency (DEA).  Hossback v. Commonwealth, Pennsylvania Board of Probation and Parole, 80 Pa.Cmwlth. 344, 471 A.2d 186 (1984).

Can a person accused of violating probation or parole confront witnesses at the VOP or parole revocation hearing?

Nonetheless, in most instances, a defendant has the right to confront witnesses and cross-examine them unless he or she waives that and waiver will be found if no objection is made to the evidence.  If a defendant fails to request in advance that an adverse witness be made available for questioning at a preliminary hearing, he or she cannot later object to affidavit testimony at that hearing.

If a witness gave an inconsistent statement at a prior time, can that be used in a parole or probation violation hearing?

A witness's prior inconsistent statement is inadmissible as substantive evidence in a parole violation proceeding providing the requirements of Pa.R.E. 803.1(1) are met.

Can the person accused of the parole or probation violation always confront a witness against him or her?

The defendant may lawfully be denied confrontation and cross-examination if the fact finder (the judge or Pennsylvania Parole Board for example) finds good cause not to permit confrontation.  For example, when a victim testified as a preliminary hearing and was subjected to lengthy cross-examination by the defense attorney at that time, and when the hearing judge found that to compel her to testify at the revocation hearing would unnecessarily harass her, hearsay testimony concerning what she would have said was properly admitted.  Commonwealth v. Quinlen, 251 Pa.Super. 428, 380 A.2d 854 (1977), aff'd 488 Pa. 255, 412 A.2d 494 (1980).

An affidavit from a police officer detailing such testimony might not be sufficient, however.  Fear of an incarcerated parolee may not be sufficient reason to justify the presentation of a witness's evidence in the form of hearsay.  A witness's assertion that he was "too busy" to attend a revocation hearing was insufficient to support a finding of good cause for admission of hearsay testimony.  A hospital urinalysis was hearsay and not admissible as a business record when no custodian or qualified witness testified in support of the record.

Can prior recorded testimony be introduced against the person accused of violating his or her probation or parole?

The prior recorded testimony presented at a criminal proceeding was admissible as an exception to the hearsay rule when the witness had died, and the parolee had been represented by defense counsel at the criminal hearing and had had an opportunity to cross-examine the witness.

If the fact finder does not specify the good cause for denying confrontation, then hearsay is not admissible.  An objection to such evidence, though not framed in a technically specific manner, will suffice to exclude it from evidence.

Can hearsay alone be used to recommit an alleged parole violator in Pennsylvania?

Hearsay may not be used to prove the identity of the perpetrator of a new crime at the final revocation hearing, and a decision to recommit a parolee as a technical parole violator may not be based solely on hearsay  For example, a revocation of parole cannot be based solely on an unproved urinalysis report suggesting the presence of marijuana.

Although hearsay alone cannot be used as the basis for revocation of parole, the Pennsylvania Parole Board may use information contained in parole violation reports in the penalty phase of a parole revocation proceeding because it is essentially a summary of information contained in the Board's central file on the parole and is only used to determine the penalty.

What is the corpus delecti rule and how does it apply to violation of probation / parole proceedings?

"Corpus delecti" is the legal principle that the admission of an extrajudicial confession (made outside of court) into evidence in a criminal case unless the prosecution introduces some evidence independent of the confession that the crime described in the confession actually occurred.  The question is, "Is the corpus delecti rule followed at a VOP hearing or a parole revocation hearing in Pennsylvania?"

In one particular case, for example, when a parolee introduced evidence that he was using the alleged weapon for legitimate purposes, the Pennsylvania Parole Board was required to make specific findings on whether the weapon was being used for legitimate purposes.

The establishment of the corpus delecti of a violation is not required in parole revocation proceedings before a defendant's admission can be placed into evidence.  As applied in criminal prosecutions, the corpus delecti rule functions to guard against the danger of a conviction based on a defendant's admission when in fact no crime has occurred.  In revocation proceedings, the Pennsylvania Parole Board's inquiry does not go to criminality, and therefore, the corpus delecti rule need not be followed in such proceedings.  By extension, the same can be argued regarding VOP hearings in Pennsylvania.

Can a failed drug screen be used an against me in a parole violation hearing in Pennsylvania?

The issue of whether a laboratory report, a failed drug screen for example, can be used in a parole violation hearing is a common issue.  Although laboratory reports are technically hearsay evidence, they may be submitted in revocation hearings when the offender makes no objection, or over his or her objection, if the laboratory reports are qualified as a business record or upon a specific finding of good cause.  For example, when a hearing examiner placed on the record that the Pennsylvania Parole Board had a contract with the laboratory whose drug screen report the defendant challenged as hearsay, the contract was sufficient to explain the examiner's finding of good cause.

Under the "good cause" exception to the hearsay rule, the laboratory report should have the necessary indicia of reliability and regularity.  That is, the report must be printed on official laboratory letterhead and contain the signature of a known and responsible laboratory official or exhibit some other mark of reliability.

Can treatment reports be used against a probationer or parolee facing a VOP in Pennsylvania?

Other reports that can become problematic for a person accused of violating his probation or parole are reports that indicate unsuccessful drug and/or alcohol treatment in DUI cases for example, or unsuccessful sex offender treatment reports in sex offense cases for example. 

The Commonwealth of Pennsylvania, through either the probation officer, parole agent, and/or prosecutor will often try to use such reports against a probationer or parolee facing violations proceedings.  Knowing that the Commonwealth will try to get such reports admitted into evidence, an effective attorney will make all possible arguments to keep such reports out of evidence.  It can be a difficult proposition to do so based on the dynamic involved at the hearing stage, but the necessary arguments must be made by the defense to: 1) try to keep the reports out of evidence so that the probationer or parolee can achieve a more favorable outcome at the hearing itself; and 2) preserve the right to address any evidentiary failings of the court or Pennsylvania Parole Board at the appellate stage if necessary and as a last resort.

Do sex offenders who are on probation or parole in Pennsylvania have any special concerns regarding what kind of evidence can be used at a violation hearing?

One issue that arises in probation / parole cases involving sex crimes is when a probationer or parolee is trying his or her best in sex offender treatment.  Despite the probationer's / parolee's best efforts, a polygraph examination (a lie detector test) is given as part of the treatment protocol and deceit is detected.  When this occurs, the sex offender treatment program will generally discharge the probationer / parolee and submit to the probation department or Pennsylvania Parole Board that, because of the failed lie detector test, the person is not amenable to treatment, failed treatment, or some related concern.  The probation department or the Parole Board will then try to have the defendant's probation or parole revoked.  It can be a catch-22 for the person accused.

Pennsylvania law is clear, however.  In Hudak v. Pennsylvania Board of Probation and Parole, 757 A.2d 439, 442 (Pa.Cmwlth.2000), the Pennsylvania Commonwealth Court held that “the Board must show that the petitioner was somewhat at fault in order to prove a violation.” The use of a therapeutic polygraph examination in sexual offender treatment programs is limited only to “confront[ing] an offender with his own disingenuous statements regarding the activity that led to his conviction.” Commonwealth v. A.R., 990 A.2d 1 (Pa. Super. Ct. 2010). When the polygraph does not cover the facts and circumstances underlying the subject's conviction, the polygraph examination cannot be the “sole basis for the revocation.” Commonwealth v. A.R., 990 A.2d 1 (Pa. Super. Ct. 2010).

What other kinds of evidence can be used against me at a parole violation hearing?

Pennsylvania Parole Board regulations permit the Board to use documentary evidence if it is satisfied that the evidence is authentic, relevant, and accurate.  For example, uncertified photocopies of court docket sheets are admissible.  The failure to raise an issue before the Board when it arises waives the issues and precludes appellate review.

Pennsylvania Attorney to Help with Probation or Parole Violation | Philadelphia Criminal Defense Attorney

Facing a violation of probation or parole in Pennsylvania will put a target squarely on the back of the person accused.  It is can be a challenging situation, and going into a violation hearing without taking the necessary steps to defend oneself as vigorously as possible can result in unfortunate consequences for the accused and his or her family.  Because it can be a hostile forum in and of itself, the related concern that the probation officer, parole agent, prosecutor, and even the judge or Parole Board will take liberties with an accused's rights at a VOP or parole revocation hearing makes a difficult situation that much more tenuous. 

Certain kinds of evidence, documentation, testimony, and argument is allowed at probation and parole violation hearings in Pennsylvania and certain kinds are not allowed.  Understanding one's rights, and more specifically, what is admissible and what is not, is critical to achieving success when a person's future, not to mention a person's freedom, is at stake.

If you or a loved one has a probation or parole issue in Pennsylvania, including, but not limited to, Philadelphia, Bucks, Chester, Delaware, Montgomery, Berks, Lancaster, Lehigh, and Northampton County, contact experienced attorney Joseph D. Lento today to learn how he can help.

About the Author

Joseph D. Lento

"I pride myself on having heart and driving hard to get results!" Attorney Joseph D. Lento passionately fights for the futures of his clients in criminal courtrooms in Philadelphia and across Pennsylvania as well as in New Jersey and nationwide. He does not settle for the easiest outcome, and instead prioritizes his clients' needs and well-being. With unparalleled experience occupying several roles in the criminal justice system outside of being an attorney, Joseph D. Lento can give you valuable behind-the-scenes insight as to what is happening during all phases of the legal process. Joseph D. Lento is licensed in Pennsylvania, New Jersey, and New York, and is admitted pro hac vice as needed nationwide. In the courtroom and in life, attorney Joseph D. Lento stands up when the bell rings!


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