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  1. #1
    Join Date
    Sep 2010
    Posts
    19,901

    Default Re: 5th Amendment Protections While Under Investigation by Probation Officers

    In his state, it only takes a preponderance of evidence and the evidence rules are different for even a revocation.

  2. #2
    Join Date
    Jan 2006
    Posts
    38,867

    Default Re: 5th Amendment Protections While Under Investigation by Probation Officers

    Yes, hearsay is even allowed and yes, the conclusion to revoke requires only a preponderance of the evidence but that doesn't mean it's a free for all. The preponderance of evidence is the acceptable level of proof to reach a conclusion, as opposed to the requirement of beyond a reasonable doubt applies to criminal trials. The basis for the revocation must still be based on probable cause.

    Rule 6.445 Probation Revocation
    (A) Issuance of Summons; Warrant. On finding probable cause to believe that aprobationer has violated a condition of probation, the court may
    (1) issue a summons in accordance with MCR 6.103(B) and (C) for theprobationer to appear for arraignment on the alleged violation, or
    (2) issue a warrant for the arrest of the probationer.

    In regards to the 5th amendment discussion:

    The Michigan Court of Appeals has held that the privilege against self-incrimination contained in the federal and Michigan constitutions applies toprobation revocation proceedings. Thus, a probationer cannot be compelled totestify against himself or herself at a probation revocation hearing. People vManser, 172 Mich App 485, 488 (1988).

    And due to that, standing on one's rights cannot be held against them;

    “[E]vidence of a defendant’s failure to respond to an accusation ofwrongdoing is inadmissible to prove guilt even if the defendant had, prior tohis silence, waived his right to remain silent.” People v Staley, 127 Mich App38, 41–42 (1983), relying on People v Bobo, 390 Mich 355 (1973). This ruleapplies to probation revocation hearings. Staley, supra.

    In short, there must be legally supportable evidence as the basis of the motion to revoke probation. Making the determination based on a preponderance of the evidence does not preclude the requirement of probable cause to lay the charge of a probation violation.

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