Issues in Probation Violation Hearings

Posted on May 13, 2010 by Rob McKinney

   In Tennessee Criminal courtrooms, probation violation hearings are sometimes difficult to win.  However, I ran across some good case law to help win these cases.

Often, a probation violation warrant is taken out due to a new criminal charge.  In State of Tennessee v. James Butler, the Court of Criminal Appeals of Tennessee  held that a trial court may not rely on the mere fact of an arrest or indictment to revoke a defendant's probation.  The state must produce some evidence in the usual form of testimony in order to establish the probationer's commission of another offense while on probation.  Therefore, the state must put on proof rather than just relying on the testimony of the probation officer.

So, be mindful that the state must prove the new offense by a preponderance of the evidence. I hope you find this case useful.

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Tips From "Making Your Case"

Posted on February 2, 2010 by Rob McKinney

 A criminal defense attorney's work is not limited to jury trials.Most of the day to day work a criminal defense lawyer performs is trying to persuade a judge to embrace their legal position.From sentencing hearings , probation violation hearings , bond reduction hearings , and motions to suppress evidence , an attorney has to be able to make their case to the judge.

I have been rereading parts of Justice Antonin Scalia and Bryan Garner's book , Making Your Case The Art of Persuading Judges.There are three main points that bears mentioning for my fellow attorneys.

 

Judges can only be persuaded when three conditions are met:

(1)They must have a clear idea of what an attorney is asking them to do.

(2)They must be assured it is within the court's power to do it

(3)After hearing the reasons for doing what you are asking, and the reasons for doing other things or nothing at all, they must conclude that what you're asking is best--both in your case and in cases that follow.

When drafting a motion or planning your argument , these three rules should be answered in your preparation.If not, be prepared for the consequences.
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