Legal Memorandum: Probation Revocation Hearing in MA

Issue: What Massachusetts cases discuss in-court identification at a probation revocation hearing?

There are two issues at a Massachusetts probation revocation hearing:  Was there a violation of the terms of probation?  If so, what disposition should be imposed?  Mass. Sup. Ct. Rule 56.  No cases were located that discuss in-court identification as a requirement at a probation revocation hearing.  There are, however, a number of cases that have relevant discussions of evidentiary requirements at such a hearing.

Revocation upheld

Commonwealth v. Wilcox, 446 Mass. 61, 841 N.E.2d 1240 (2005).  The revocation of the defendant’s probation was upheld even though neither of the complaining witnesses testified as to the acts constituting the violation.  Probation was revoked based on the hearsay statements in the police report. 

Commonwealth v. Nunez, 446 Mass. 54; 841 N.E.2d 1250 (2006).  Hearsay evidence supported revocation of the defendant’s probation when the hearsay statement factually detailed and based on personal knowledge and observation, made while the events were fresh in the witness’s mind, and corroborated at least in part by other witnesses.

Commonwealth v. Bukin, 467 Mass. 516; 6 N.E.3d 515 (2014).  Hearsay evidence was reliable when one of the two victims volunteered the information on the incident to the police officers, did not struggle to answer questions, and understood that his allegations could result in criminal charges.  The two victims were interviewed separately, and there was no indication that they merely repeated each other’s testimony.  The first victim was not an unreliable witness because he had Asperger’s […]