The biggest mistake I see lawyers make in Nevada probation revocation hearings is not knowing the law to protect their clients. Most lawyers think there’s nothing that can be done when someone who is on probation is facing revocation of probation to win. Often a person is accused in a violation report prepared by Nevada Parole and Probation Department of committing a new crime. Many times the violation report contains hearsay which is defined as an out-of-court statement being offered to prove the truth of the matter asserted. Inexperienced lawyers don’t demand that the State produce the declarants of those statements because these lawyers don’t understand that you have an unconditional right to question and cross-examine the sources of the information in those violation reports against you. In other words, if the arresting officer in the new arrest accuses you of doing something or saying something, he or she must be made present in the revocation hearing for your lawyer to cross-examine this witness.
You don’t have a right to a jury trial for your probation revocation hearing but you can win. Your right to cross-examine is not as great as in a jury trial, but you absolutely do have the right to cross-examine the police officer who arrested you under your Sixth Amendment rights under the Nevada Constitution and the U.S. Constitution in your probation revocation hearing. This is because of the case of Anaya v. State, 96 Nev. 119 (Nev. 1980). If the police officer is not available to testify and the prosecutor attempts to prove his or her case in the probation revocation hearing without the police officer, you will very likely be able to avoid revocation assuming that you have no other serious violations. If the judge permits the probation officer to testify about what the arresting officer said and did in the new arrest, you have a very good chance of getting the Nevada Supreme Court to reverse the judge’s decision to revoke you assuming you have no other violations such as absconding while on probation.
Another important thing to remember is that you have the right to present witnesses in your defense at your revocation hearing. The Anaya v. State case I referenced above gives you that right to present mitigation evidence on your behalf. What that means is that you have the right to have your own character witnesses testify before the judge to hear what positive things you’ve done while on probation and that you are a person who is responsible, working or in school, going to AA meetings, etc… and overall doing things to improve the quality of your life and that of your family.
Most lawyers don’t present live character witness in probation revocation hearings because they don’t know that you can do this. Sometimes this may be the only thing that saves you and convinces the judge that you deserve to be reinstated to probation and that you should get a second chance. If family members present themselves well, then you may want them to testify about the impact that your getting revoked and going to prison will have on your family. If the judge likes your family, he or she may decide to give you a second chance so as not to punish your family for the mistakes you may have made while on probation. Also, you as a defendant have the right to testify in a probation revocation hearing in your own defense.
If you or someone in your family is facing a probation revocation in Nevada state court or facing revocation in federal supervised release, be sure and call me. You can come visit with me so I can fully explain what options you have and how I can help you.