NCJ Number
59508
Journal
Pacific Law Journal Volume: 9 Issue: 2 Dated: (JULY 1978) Pages: 949-984
Date Published
1978
Length
36 pages
Annotation
THE CONSTITUTIONAL DILEMMA FACING PROBATIONERS AND PAROLEES WHO MUST CHOOSE BETWEEN EXERCISING THEIR RIGHT TO BE HEARD AT A REVOCATION HEARING AND PROTECTING THEMSELVES FROM INCRIMINATION IS EXAMINED.
Abstract
IF A PROBATION REVOCATION HEARING IS HELD PRIOR TO A CRIMINAL TRIAL ON THE MERITS, THE DEFENDANT CAN EITHER CLAIM THE RIGHT TO REMAIN SILENT AND RISK REVOCATION DUE TO THE STATE'S LOW BURDEN OF PROOF, OR ALLOW TESTIMONY TO BE PRESENTED AT THE HEARING WHICH MAY BE USED AS EVIDENCE IN THE SUBSEQUENT CRIMINAL TRIAL. SEVERAL TESTS HAVE BEEN DEVISED BY THE COURTS TO DETERMINE THE CONSTITUTIONALITY OF PROCEDURES THAT FORCE A DEFENDANT TO CHOOSE BETWEEN REBUTTING THE STATE'S CASE AT HEARING OR DECLINING TO TESTIFY TO RESERVE THE PRIVILEGE AGAINST SELF-INCRIMINATION. THE CALIFORNIA SUPREME COURT IN PEOPLE V. COLEMAN (1975) SOLVED THIS PROBLEM, IN PART, BY EXCLUDING FROM THE SUBSEQUENT TRIAL ANY TESTIMONY THE DEFENDANT GAVE AT A PRIOR REVOCATION HEARING. ALTHOUGH THE CALIFORNIA COURT DID NOT BASE ITS HOLDING ON THE FEDERAL CONSTITUTION, THERE IS A POSSIBILITY OF EXCLUDING SUCH TESTIMONY FROM CRIMINAL TRIALS ON DUE PROCESS GROUNDS. BOTH DEPRIVATION THEORY AND NEED THEORY ARE USEFUL IN ASSESSING THE BREADTH AND SCOPE OF DUE PROCESS PROTECTION THAT SHOULD BE ACCORDED PROBATIONERS AND PAROLEES AT REVOCATION HEARINGS. IT IS RECOMMENDED THAT THE STANDARD OF PROOF AT REVOCATION HEARINGS BE RAISED AND THAT MULTIPLE HEARINGS FOR A SINGLE CRIMINAL ACT BE PREVENTED. THIS PROPOSAL WOULD ACCOMMODATE THE RIGHTS OF DEFENDANTS WHILE INCREASING THE EFFICIENCY OF THE CRIMINAL JUSTICE SYSTEM. THE ALTERNATIVE LEGISLATION WOULD NOT SOLVE THE CONFLICTING PROBLEM AND WOULD BE COSTLY. EVEN WITH USE IMMUNITY, THE JUDICIAL SOLUTIONS ARE SUSPECT SINCE THEY CAN RESULT IN THE STATE'S MAKING USE OF A DEFENDANT'S DISCLOSURE OF ALIBI WITNESSES AND OTHER TRIAL STRATEGY. FOOTNOTES ARE PROVIDED. (TWK)