Probationer is alleged to have violated conditions of supervision by committing several new offenses and failing to report for six months and failing to perform community service as ordered. It is anticipated that she will plead true to the failure to report and perform CS, but "not true" to commission of new offenses. While the new offenses will likely result in new criminal prosecutions, none of those have been completed at this time, i.e. the guilt of the defendant has not been adjudicated. It is anticipated that defendant will testify at the MTR hearing (to plead for mercy, to explain failures to report). It would be extremely burdensome and perhaps risky to attempt to prove new offenses during the "case in chief". Often in this situation we waive or abandon those allegations in the MTR. This seems especially prudent given the holding in Tarver, 725 S.W.2d at 199 (collateral estoppel can arise from finding of insufficient evidence of new offense at MTR hearing). But it is also clear that the court must make a specific fact finding (i.e., that the allegation is "not true") for the Tarver doctrine to apply. Nash, 817 S.W.2d at 842. My question: assuming the state should take an allegation out of contention to avoid an adverse fact finding, when should that be done? In this case, I would like to be able to cross-examine the defendant concerning the new offenses. Depending on what she says, I might then determine to abandon the allegations (seeing that the proof is insufficient). But, I ultimately would like to have her liable for any perjury at the hearing as well. Can I wait to withdraw the allegations until the close of all proof? Could the court decline to permit such waiver or abandonment at that point? Does her testimony become immaterial for purpose of any later perjury prosecution if the allegation is withdrawn prior to asking for a ruling from the court? If you do not wish to try to answer my question, then perhaps you could share in general your policy concerning alleging and proving new offenses for the purpose of revocation/adjudication proceedings (particularly where those offenses arose in other, perhaps distant, jurisdictions).

I think she has a Fifth Amendment privilege as to the new offenses. I think existing case law will allow her to testify for a limited purpose, i.e. excuses for technical violations, without waiving her Fifth Amendment privilege as to the new offenses.

It's really a logistical issue. If you can afford to rally all your folks, dot your i's and cross your t's for a MTR, do it. If you treat these things more casually, be more prudent. In busy jurisdictions, though, you'll make a judge mad if you force them to hold separate trials and MTR's based upon the same allegation of an offense.

I generally call the prosecutor in the other jurisdiction and we make a joint determination as to the direction to take. For example, it may make more sense to try a higher degree felony to a jury instead of using it to revoke a SJF probation. It also depends on the strength of the respective cases. These cases usually work out.

QM, you have raised a most interesting issue. My initial thought was that by taking the stand during the revocation proceeding, the defendant would be waiving her right to invoke the Fifth, as did the witness in Felder, 848 S.W.2d at 99 (defendant desiring to testify about punishment issues only was subject to full cross on any subject matter which was relevant). I have not found any caselaw suggesting how this rule applies to revocation proceedings (which have been described as non-adversarial). See Hill, 480 S.W.2d at 202.

Murphy, 465 U.S. 420 in conjunction with cases such as Allen, 478 U.S. 364 suggests there may be no privilege against compelled self-incrimination applicable to a probationer, at least if the state agrees it cannot subsequently use the answers given in a criminal proceeding. But see Manser, 432 N.W.2d 348 and Gault, 387 U.S. 1 (availability of privilege does not turn upon type of proceeding in which its protection is invoked, but upon nature of statement or admission and exposure which it invites). Can you guide me to the cases you had in mind?

[This message was edited by Martin Peterson on 06-09-03 at .]