As has been discussed many times in Attorney Sam’s Take, there are certain situations in the Commonwealth’s criminal justice system wherein one does not enjoy all the rights regularly given, or at least promised, to a criminal defendant. An example of such a situation is when you are on Massachusetts probation.

There are various instances in which a criminal defendant is on probation. Many people do not realize that, while a case is pending, and the defendant is released on bail or without bail, that defendant is on a sort of probation. That probationary status could even have special conditions which the defendant, still presumed innocent, has to adhere to lest he go to jail while the matter is pending.

Even in cases in which there are no special conditions, a criminal defendant is warned that should he be charged with another crime while released, he may be held for months in custody without any bail.

“You mean…if the defendant is found guilty of a new crime, right?”

Wrong. The Commonwealth seldom waits to find out whether there is a conviction in the new case. Simply being charged is enough to trigger being held.

“Let me get this straight. Some wack0 ex-lover of mine presses charges on me which are not true, I get criminal charges, but am presumed innocent of those charges unless and until I am convicted, right?”


“And if I am mistakenly arrested again…whether by the same wacko or something else…I get charged, but am still presumed innocent of the new charge too, right?”

You’ve got it.

“And yet…just being charged in the new case (in which I am presumed innocent) could mean that I am held without bail on the first case (in which I am also presumed innocent)?


If the state of probation which you are on while a case is pending scares you, let’s discuss the type of probation you can be put on after the case is finished.

Assuming for the moment that the case is not dismissed and that you have not been acquitted, you will likely find yourself on probation. Many people labor under the misunderstanding that being put on probation after a criminal matter is simply a “gift”. In other words, the criminal case which was facing the defendant is over and that defendant did not have to go to jail. However, it is anything but “game over”.

Even when the case is over, you need not be convicted to find yourself on probation. For example, one possible outcome is known as a Continuance Without A Finding. In this case, the case is continued to another date in the future (usually between one to two years). During that time, the defendant is on probation. If there are no problems and all probation conditions are met, then the case is actually dismissed. However, if there are any problems, it is jail time.

Ordinarily, there are more conditions to end of the case probation than there were while the case was pending. Naturally, just as when the case was pending, getting charged with a new crime is a violation of probation, which can mean incarceration. The same is true if the defendant does not meet all the conditions that had been set…or new conditions the probation officer wants to be set.

“What if I have an unreasonable probation officer who wants something that I really do not want to do?”

The case will go before the judge. If the judge sides with the probation officer, then you have to do it or else your refusal will be a violation of probation.

When a probation officer decides that the probationer (formerly the defendant) is not following the rules as the probation officer sees it, a summons is given to the probationer. The probationer must show up and face a surrender hearing. A judge will decide if there has been a violation of probation.

Unlike in the criminal case, a defendant does not have to be proven guilty beyond a reasonable doubt. Instead, the probationer simply has to be shown to be in violation by a mere preponderance of the evidence. That is the burden of proof, by the way, in civil cases.

A probationer’s rights to defend himself are fewer than they were in the actual criminal case and the rules concerning evidence are much more relaxed. Regardless of what you may think about presumptions of innocence, the probation officer is given a great amount of deference in these matters.

“If I am found in violation of probation, do I automatically go to jail?”

No. Usually, the judge has a great deal of latitude in what is to be done with you. Usually, the judge will ask the probation officer what she wants done. Sometimes, probation is extended. Sometimes new conditions are set. Sometimes it is time to go to jail.

While one has fewer rights when facing a probation surrender than at a criminal trial, a probationer does have some rights. How to best make the most out of those rights?

Same advice as always…you want an experienced criminal defense attorney.

In the meantime, have a great, safe and law-abiding weekend!

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