Preliminary Hearing

PURPOSE: An alleged supervised released violator is entitled to a preliminary hearing under the provisions of a United States Supreme Court decision, Morrisey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). (1) Every alleged violator has the right to an informal hearing to determine if there is probable cause a violation of supervised release has occurred. (2) The alleged violator may indicate his/her desire for a hearing, or his/her waiver of a hearing, by so indicating on a form entitled, Request for Waiver of Preliminary Hearing, which will be furnished to him/her by his/her parole officer. (3) There are certain conditions to be met in the conducting of a preliminary hearing. (A) The preliminary hearing will be held as promptly as is convenient after the arrest. (B) The preliminary hearing will be held reasonably near the place of the alleged violation or arrest. The officer will notify the alleged violator of the date, time, and location of the hearing and will designate the officer who will conduct the hearing. The charges brought against him/her will also be furnished to him/her. In no instance will the officer conducting the hearing be the alleged violator’s supervising officer or that officer’s immediate supervisor. (C) The hearing officer will be in charge of the hearing and only the alleged violator and the hearing officer will be present, unless the hearing officer feels a security officer should be in attendance. Only one (1) witness will be allowed in the hearing room at a time. The hearing officer will initiate all questioning of witnesses and may terminate any questioning if the testimony becomes irrelevant, repetitious, or excessive. 1. The alleged violator may present his/her own testimony and present any documents or other evidence or mitigating circumstances which may explain the violation. 2. The alleged violator may present his/her own witnesses who can give relevant information concerning the violator. The witnesses cannot just be character witnesses. It will be the responsibility of the alleged violator to produce his/her own witnesses, and if s/he is in custody, the officials in charge of the detaining facility will allow him/her to make contacts as may be necessary. The hearing officer does not have subpoena power, and there are no funds available to issue the appearance of any witness nor to pay any other expenses incurred by the alleged violator in preparation for or resulting from the preliminary hearing. 3. The alleged violator may confront or cross-examine any adverse witnesses unless the hearing officer determines that the witnesses may be subject to risk of harm if their identity is disclosed. 4. The alleged violator will not be allowed to have an attorney present, as this is an informal review to establish probable cause. The only exception shall be if the hearing officer has reason to believe the alleged violator is incapable of understanding the proceedings. 5. Upon completion of the hearing, the hearing officer will forward a written hearing report to the court or the board for further action. The alleged violator will receive a copy of the report as soon as it can be prepared and delivered. 6. When the preliminary hearing is being held by the sentencing court, that court may combine the preliminary and revocation hearings. When this occurs, the hearing shall be governed by the rules of that court and the provisions of this administrative rule. 7. When the probationer is not arrested in the jurisdiction of the sentencing court, the preliminary hearing may be conducted by the judge or associate circuit judge in the county of the alleged violation or arrest having original jurisdiction to try criminal offenses. When this occurs, the hearing shall be governed by the rules of that court and the provisions of this administrative rule. AUTHORITY: sections 217.040, 217.720, and 217.722, RSMo 2000.* This rule was previously filed as 13 CSR 80-4.020. Original rule filed March 15, 1974, effective March 25, 1974. Emergency amendment filed Aug. 6, 1979, effective Aug. 16, 1979, expired Nov. 11, 1979. Amended: Filed Aug. 6, 1979, effective Dec. 13, 1979. Amended: Filed July 15, 1988, effective Nov. 1, 1988. Emergency amendment filed Dec. 18, 1991, effective Feb. 1, 1992, expired May 30, 1992. Amended: Filed Dec. 18, 1991, effective June 25, 1992. Amended: Filed Dec. 22, 2011, effective June 30, 2012. *Original authority: 217.040, RSMo 1982, amended 1989, 1993, 1995; 217.720, RSMo 1982, amended 1989, 1990, 1994; and 217.722, RSMo 1989, amended 1990, 1995.