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  1. #1

    Default Asserting the Fifth Amendment When Questioned by Your Probation Officer

    My question involves criminal law for the state of: MI

    Do 5th amendment protections apply when under investigation by probation officers, or can you be held in violation for not answering their questions regarding a criminal case for which you are under investigation?

  2. #2
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    Default Re: 5th Amendment Protections While Under Investigation by Probation Officers

    I didn't find anything for Michigan but I did find a case decision in Colorado that may shed some light on your question.

    Understand something first: I cite that case ONLY to illustrate how the court explained that a probationer retains 5th Amendment rights.

    Everything else in the case might or might not apply to yours and you can see by reading the entire decision that there is not a simple "one size fits all" answer especially since a Colorado case might not be precedential for Michigan.

    So, yes, a probationer has 5th Amendment rights which might preclude revocation but, under some circumstances, might not.

    Read the case decision:

    https://www.courts.state.co.us/userf...13/13SA268.pdf

    And get yourself a good criminal defense attorney to research this for you and properly advise you.

  3. #3
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    Default Re: 5th Amendment Protections While Under Investigation by Probation Officers

    Jack - Posting hx

  4. #4
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    Default Re: 5th Amendment Protections While Under Investigation by Probation Officers

    If you want to stay on probation, you consent to certain things like being required to inform the probation officer about certain activities and subjecting yourself to search. The Constitutional support for this is under the Fifth Amendment as well. Your liberty has been restricted via due process (your original trial). Your other option is to give up the privilege of probation and go back to jail.

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

    If you are the suspect in a new crime and are asked by the probation officer about that new crime, you can assert the Fifth Amendment. The fundamental question is whether and when you can face probation violation proceedings for refusing to answer the questions on that basis.

    I would argue that the valid assertion of the Fifth Amendment should not form the basis of a probation violation, but that the defendant remains at significant risk of being found to have committed a probation violation on other grounds. Terms of probation frequently involve provisions that a probationer may not get arrested, or even to more broadly be involved in an encounter with law enforcement, so it's possible that the circumstances of the new charge would support a probation violation even without more evidence of the probationer's actual involvement in criminal activity. Also, a probation violation proceeding is a probable cause hearing, and it will often be possible to meet that standard of proof even if there has been no conviction on a new charge, and even if charges haven't been filed on a new, alleged offense.

  6. #6

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

    Thanks for your insightful replies, and yes I do have a colored posting Hx as CBG alluded to. It appears you walk a very fine line when on probation, in exchange for not doing your time incarcerated. I guess I didn't realize just how easy it is to get violated, even on mere suspicion of wrong doing. Thanks again.

  7. #7
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    Default Re: 5th Amendment Protections While Under Investigation by Probation Officers

    You do not get violated on mere suspicion. As Mr K stated, a violation action involves a probable cause hearing. There is a legal definition for that term and it's requirements apply to the situation. You aren't violated on mere suspicion but probable cause is required, which is the legal standard for prosecuting any person.

  8. #8
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    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.

  9. #9
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    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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