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Hearing Officer's Guide - II. Basic Considerations of a Due Process Retaking Hearing

Where a probable cause hearing is required, the following are elements of due process that are applicable in all circumstances:

  1. The hearing must be conducted by a neutral and independent person and reasonably close in time and place to the alleged violation leading to detention. The hearing officer does not have to be a judicial officer, but to ensure an appropriate review of the allegations the person must be sufficiently detached from the circumstances as to lead a reasonable person to conclude that the hearing officer was truly independent.
  2. The offender is presented with notice of the hearing, the purpose of the hearing, and the allegations of wrongdoing.
  3. The offender should have an opportunity to be present, unless the hearing officer articulates circumstances that justify the offender’s absence from the proceedings. For example, the offender does not necessarily have to be present when the only matter for determination is whether a sending state that already made a probable cause determination is presenting correct documentation. See, Sec. III, infra.
  4. The officers from the sending state must be required to establish their authority to retake the offender.
  5. Officials of the sending and/or receiving state are required to show that the offender subject to retaking and in custody is the proper person.
  6. A written record of the proceedings must be made.

Commentary

The purpose of affording an offender some type of due process hearing before an independent hearing officer is to ensure that state officials are not acting arbitrarily either in the detainment of an individual or in the revocation of an offender’s community supervision. Minimal considerations of due process require that the offender have the opportunity to hear the basis of the alleged violations, the opportunity to appear before an independent person, and a written record of the findings. It should be noted that a written record of the proceedings does not mean a verbatim transcript of the proceedings. It is sufficient for the hearing officer to make a written record of the proceedings that articulates the facts and circumstances that form the basis of the retaking and the hearing officer’s conclusions. Furthermore, the hearing to which an offender may be entitled does not require a full adversarial hearing. As previously noted, the retaking proceeding is not the revocation proceeding. For example, the right to notice and the opportunity to be heard in this context does not carry with it the presumptive right to legal representation and full confrontation of witnesses.

References

Definitions

Click terms below to reveal definitions used in this rule.

Probable Cause Hearing – a hearing in compliance with the decisions of the U.S. Supreme Court, conducted on behalf of an offender accused of violating the terms or conditions of the offender‘s parole or probation.

Retaking – means the act of a sending state in physically removing an offender, or causing to have an offender removed, from a receiving state.

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