I was put on probation in 2007 for Battery on a Police Officer for three years. In December 2008, my brother in law and I were in a fight, we live acrss the street from each other, he caused the fight my wife was the only witness, he went home and I went for a walk, this was three days before christmas, he called the cops twenty minutes later and since I was not around they could not question me, one day later I was picked up on probable cause and taken to jail, I was released on bond christmas eve. I had a trial regarding the fight and my wife testified and they found me not guilty, when I went for my probation hearing, the prosecutor said that it was a trial not a VOP hearing and he has the cops who arrested me in December and my brother in law there. Apparently, my brother in law has been calling the prosecutor on a weekly basis and telling him I am harassing him, he filed for a RO but it was denied. I have a hearing/trial on the VOP in November, how is it that if I am found not guilty that they can still pursue charges against for a VOP and call witnesses. Even the Judge was confused that day when I went to Court back in July and the matter was continued to November. Can they still press charges and how can they call witnesses?

The probation hearing has a different standard of proof than a trial. At trial, the standard of proof is "beyond a reasonable doubt." At a probation hearing the standard of proof is usually by a preponderance of the evidence or by clear and convincing evidence.

Furthermore, this is not a double jeopardy issue. The hearing is not going to convict or punish you for the assault, but rather for not conforming your behavior to the conditions of probation.

But the conditions of my behavior were found not guilty by trial in the misdemeanor as I was picked up on probable cause. So why would the prosecutor have subpoena the cops who were called out for the fight and also subpoena my borther in law?

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Originally Posted by kjazz1794

how is it that if I am found not guilty that they can still pursue charges against for a VOP and call witnesses???

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Hello k:

Uhhhh, because they're pricks?? That would be MY guess... But, of course, you should KNOW that going in. Don't be so surprised. It's their job to slam you.

Your job is to do everything you can to STOP them. That's probably going to take a real mean criminal attorney... Make SURE he knows about probation issues... That's a particular specialty.

Course, if you just want to HOPE that justice, somehow, finds its way into your hearing... snicker, snicker...

excon

The allegations in the trial involved a new charge. The jury or judge did not find beyond a reasonable doubt that the prosecution proved each element of its case. In the probation hearing, the prosecutor only has to prove that it is more likely than not that you violated the conditions of probation. The burden of proof is much lower.

However, if you have stayed out of trouble since the fight and have no other violations, I doubt that the judge will revoke your probation. By the time of your hearing it will have been almost a year.

Be sure and inform your attorney of the RO hearing. Your brother-in-law may have made conflicting statements or statements which would call his credibility into question, during the hearing.

Yes my brother in law has been making false statements and has been calling on weekly basis stating I am fighting with my girlfriend or I was drunk just to cause trouble and everyone even my attorney believes he is causing trouble. My question is how and why would they subpoena the cops that were called out that night for the fight. My probation officer is even ready to let me off and thinks this is bull crap, he was at the first vop hearing with papers to release me from my probation. I just don't understand are they allowed to call witnesses at a vop hearing and yes I have not been in any trouble since the incident in December of 08 and I have paid all my probation fees and court costs.

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Originally Posted by kjazz1794

I just don't understand are they allowed to call witnesses at a vop hearing and yes I have not been in any trouble since the incident in December of 08 and i have paid all my probation fees and court costs.

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Hello again, k:

Couple things. It appears that, if your probation officer was willing to let you off for this incident, but isn't now, he is being pressured to violate you. The prosecutor can't bring those proceedings...

Of course, they can bring witness's and subpoena records. It's a LEGAL proceeding, after all. It would seem like your lawyer could tell you why your PO caved or WHY the prosecutor has it in for you.

So, from what I know, it doesn't look like they're doing ANYTHING illegal at all. But, there's MORE to this story.

excon

You have a wife and a girlfriend? (as stated in your third post)
If you split with the wife maybe she is going to rescind her statement saying it was made under duress.

Just a stab in the dark.

I have a wife and my probation officer is willing to release me from probation immediately he thinks this is a bunch of bull crap.

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Originally Posted by kjazz1794

I have a wife and my probation officer is willing to release me from probation immediately he thinks this is a bunch of bull crap.

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The PO needs to make a recommendation to the court on your behalf.It will carry some weight.

Hello again, k:

You asked for legal advice. You should pay attention when it comes your way...

THE PROBATION OFFICE is in charge of your case. The PROSECUTOR IS NOT. If you are being violated, it's your PROBATION OFFICER who is doing it. You're just buying into his passing the buck...

I thought you were going to have your lawyer look into WHY the probation office is DOING this to you.

But, if you ain't interested in MY ADVICE, just say the word.

excon

I have two depositions from my brother in law with two different accusations staing he was in my house when the figght occurred and then the next deposition was he was stating he was outside the home.

Do you even read the answers?